Opinion of the Court. As the moneys advanced by J. S. Waterman to R. W. Waterman and Porter were all repaid before the commencement of this suit, and as no conveyance was demanded from R. W. Waterman within the time limited by his obligation, the plaintiff was not entitled to the relief asked. One other point requires notice at our hands. An interlocutory decree was rendered declaring the plaintiff to be entitled to the relief asked, and the cause was referred to the master to state the accounts between the parties in respect to the use of the property, and the profits derived from it. The master made his report, and the final decree recites that each party waived the right to except to it. This waiver is relied upon as showing that the final decree was by consent, and, therefore, not to be questioned in this court. This contention is overruled. The waiving of exceptions to the master's report meant nothing more than that the appellant did not dispute its correctness in respect to the amount of the profits realized from the property. This waiver had no reference to the fundamental inquiry as to whether the plaintiff was entitled to a conveyance. But as, for the reasons stated, R. W. Waterman was not bound to convey - the time having elapsed in which a conveyance could be rightfully demanded - the entire decree falls. The decree is reversed and the cause remanded with direc tions to dismiss the bill. PORTER V. BANKS. Appeal from the Circuit Court of the United States for the Northern District of California. No. 191. Argued with and decided at the same time as No. 190, ante, 394. MR. JUSTICE HARLAN. The decree in this case required the specific execution by Porter of a written obligation to J. S. Waterman, similar in all respects to that of R. W. Waterman, referred to in the foregoing opinion, except that the interest which Porter agreed to convey was (3-100) three one-hundredths of the same property; also to pay to the original plaintiff, Abbie L. Waterman, the sum of $5373.40 as the profits Syllabus. of the property agreed to be conveyed with the interest that accrued thereon prior to January 10, 1888. The facts in this case do not materially differ from those in the above case, and for the reasons stated in the above opinion the decree in this case must also be Mr. George F. Edmunds for appellant. Mr. Charles C. Bonney for appellee. Reversed. GRAND TRUNK RAILWAY COMPANY v. IVES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. No. 134. Argued January 4, 5, 1892. — Decided April 4, 1892. When, in an action brought against a railroad company in Michigan by the administrator of a person killed by one of its trains, to recover damages for the killing, the record in this court fails to show that any exception was taken at the trial, based upon the lack of evidence to show that he left some one dependent upon him for support, or some one who had a reasonable expectation of receiving some benefit from him during his lifetime, as required by the laws of that State, (Howell's Ann. Stat. §§ 3391, 3392,) the objection is not before this court for consideration. The terms 64 ordinary care," "reasonable prudence," and similar terms have a relative significance, depending upon the special circumstances and surroundings of the particular case. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury; but where the facts are such that all reasonable men must draw the same conclusion from them, the question of negligence is one of law, for the court. The running of a railroad train within the limits of a city at a greater speed than is permitted by the city ordinances, is a circumstance from which negligence may be inferred in case an injury is inflicted upon a person by the train. Whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous is a question of fact for a jury; although in some cases it has been held to be a question of law for the court. Where the statutes of a State make provisions in regard to flagmen at Opinion of the Court. crossings, this court will follow the construction given to such statutes by its courts; and, so following the decisions of the courts of the State of Michigan, it is held that the duty to provide flagmen or gates, or other adequate warnings or appliances, may exist outside of the statute if the situation of the crossing reasonably requires it. The giving of an erroneous instruction which was not prejudicial to the objecting party is not reversible error. In an action against a railroad company to recover for injuries caused by the negligence of its servants the determination of the fact of whether the person injured was guilty of contributory negligence is a question of fact for the jury. In such case if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, an action for the injury cannot be maintained unless it further appear that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence. In determining whether the injured party in such case was guilty of contributory negligence, the jury is bound to consider all the facts and circumstances bearing upon the question, and not select one particular fact or circumstance as controlling the case to the exclusion of all others. THE case is stated in the opinion. Mr. Otto Kirchner for plaintiff in error. Mr. Don M. Dickinson for defendant in error. MR. JUSTICE LAMAR delivered the opinion of the court. This was an action by Albert Ives, Jr., as administrator of the estate of Elijah Smith, deceased, against the Grand Trunk Railway Company of Canada, a Canadian corporation operating a line of railroad in Michigan, to recover damages for the alleged wrongful and negligent killing of plaintiff's intestate, without fault on his own part, by the railway company, at a street crossing in the city of Detroit. It was commenced in a state court and was afterwards removed into the Federal court on the ground of diverse citizenship. The action was brought under §§ 3391 and 3392 of Howell's Annotated Statutes of Michigan, and, as stated in the declaration, was for the benefit of three daughters and one son of the deceased, whose names were given. Opinion of the Court. There was a trial before the court and a jury, resulting in a verdict and judgment in favor of the plaintiff for $5000, with interest from the date of the verdict to the time the judgment was entered. The plaintiff offered to remit the interest, but the court refused to allow it to be done. The defendant then sued out this writ of error. On the trial, the plaintiff, to sustain the issues on his part, offered evidence tending to prove the following facts: Elijah Smith, plaintiff's intestate, at the time of his death in May, 1884, was about seventy-five years of age, and had been residing on a farm, a few miles out of the city of Detroit, for several years, being engaged in grape culture. It was his custom to make one or more trips to the city every day during that period. In going to the city he travelled eastwardly on a much travelled road, known as the "Holden road," which, continued into the city, becomes an important and well-known street running east and west. Within the limits of the city the street was crossed obliquely, at a grade, by the defendant's road and two other parallel roads coming up from the southwest, which roads, in the language of the defendant's engineer, curve "away from a person coming down the Holden road." At the crossing the Holden road is sixty-five and one-half feet wide. The defendant's right of way is forty feet wide, and the right of way of all the parallel railways at that place is one hundred and sixty feet wide. For a considerable distance, at least three hundred feet, along the right side of the road going into the city there were obstructions to a view of the railroad, consisting of a house known as the "McLaughlin house," a barn and its attendant outbuildings, an orchard in full bloom, and, about seventy-six feet from the defendant's track, another house known as the Lawrence house." Then there were some shrub bushes, or, as described by one witness, some stunted locust trees and a willow, a short distance from the line of the right of way. So that, it seems, from all the evidence introduced on this point, it was not until a traveller was within fifteen or twenty feet of the track, and then going up the grade, that he could get an unobstructed view of the track to the right. One Opinion of the Court. witness testified that if he was in a buggy, his horse would be within eight feet of the track before he could get a good view of it in both directions. On the morning of the fatal accident, Mr. Smith and his wife were driving down the Holden road into Detroit, in a buggy with the top raised, and with the side curtains either raised or removed. Opposite the Lawrence house they stopped several minutes, presumably to listen for any trains that might be passing, and while there a train on one of the other roads passed by going out of the city. Soon after it had crossed the road, and while the noise caused by it was still quite distinct, they drove on towards their destination. Just as they had reached the defendant's track, and while apparently watching the train that had passed, they were struck by one of the defendant's trains coming from the right at the rate of at least twenty-some of the witnesses say forty-miles an hour, and were thrown into the air, carried some distance, and instantly killed. This train was a transfer train between two junctions, and was not running on any schedule time. The plaintiff's witnesses agree, substantially, in saying that the whistle was not blown for this crossing nor was the bell rung, and that no signal whatever of the approach of the train was given until it was about to strike the buggy in which Mr. Smith and his wife were riding. The train ran on some four hundred feet or more after striking Mr. Smith before it could be stopped. It further appeared that an ordinance of the city of Detroit required railroad trains within its limits to run at a rate not exceeding six miles an hour; and it likewise appeared that there was no flag-man or any one stationed at this crossing to warn travellers of approaching trains. Most of the witnesses for the defence, consisting, for the main part, of its employés aboard the train at the time of the accident, testified, substantially, that the ordinary signals of blowing the whistle and ringing the bell were given before reaching the crossing, and that, in their opinion, the train was not moving faster than six miles an hour. It must be stated, however, that some of the defendant's witnesses the brake |