and the same may be said of Nebraska cases referred to. We think this case plainly distinguishable from some that have arisen upon statutory bonds given to protect laborers and materialmen, where sureties have been held not to have been released by departures from the contracts; the laborers and materialmen not being responsible therefor. The foregoing is the principal question in the case. Error was assigned upon some statements of fact, which counsel assert to have been questions for the jury; but we need not discuss it, as all know that disputed questions of fact are for the jury, and it would be of little interest or importance to ascertain the state of the evidence in this case, as we must reverse it on other grounds. Again, defendant's counsel say that the surety was not liable for any sum that plaintiff was not obliged to pay upon the building contract. They claim that there was a sum of $614 of the contract price still in her hands. It appears that an equal sum was due and owing to materialmen and subcontractors on the job, and as we understand it the proposition is, that, no liens having been filed, and there being no legal liability on plaintiff's part to pay these men, she cannot recover the sum from the surety; and, if this is all there is to the proposition, we think the claim of defendant's counsel is correct. In other words, she cannot recover from this surety for a sum that she has yet in her hands, and which she is under no legal obligation to pay, if such is the situation. Counsel appear to be in disagreement about the facts, and we are unable to say from the record referred to that these are not legal outstanding obligations against her, growing out of transactions following French and Butler's abandonment of the job, if they did so. We are constrained to reverse the judgment and direct a new trial. GRANT, C. J., and BLAIR, MOORE, and MCALVAY, JJ., concurred. DEITSCH v. TRANS ST. MARY'S TRACTION CO. 1. STREET RAILROADS-OPERATION-NEGLIGENCE-COLLISION WITH VEHICLE. A street-railway company has no exclusive right to the use of that portion of the street occupied by its track, but persons using the street have a right to drive upon or across it whenever necessary, provided they exercise reasonable care and caution in so doing, and they also have a right to rely to some extent upon the watchfulness and prudence of the motorman in charge of a car and upon his ability to stop within a reasonable distance. 2. SAME CONTRIBUTORY NEGLIGENCE-CROSSING TRACKS. Street railways have ordinarily the right of way over other vehicles, and the driver of a vehicle owes the duty of looking before going onto the tracks; but when the circumstances are such that he may reasonably assume, and honestly think, that he has time to cross, it is not negligence for him to attempt to do so, even if a car be in sight and coming. Error to Chippewa; Steere, J. Submitted October 15, 1908. (Docket No. 72.) Decided November 30, 1908. Case by Frank Deitsch against the Trans St. Mary's Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Affirmed. Horace M. Oren (John H. More, of counsel), for appellant. George B. Holden, for appellee. MOORE, J. The plaintiff, a young man, was in the employ of a circus company that exhibited at Sault Ste. Marie. His duty was to drive a six-horse team which drew a circus wagon or van. The horses were hitched to the van in ordinary fashion, in teams two abreast. The distance from the heads of the lead horses to the rear of the van was 54 feet. While attempting to cross the track of defendant company with the above-described outfit, Mr. Deitsch was struck by a street car owned by defendant, and severely injured. For these injuries he sued the defendant, and recovered a verdict. The accident happened at about 10 o'clock at night. The case is brought here by writ of error. The plaintiff gave testimony tending to show that when he started to cross the track the approaching car was so far away that he supposed, and had a right to suppose, he had ample time to cross the track; that the car was in fact run at a speed in excess of 20 miles an hour. It was the claim of the defendant that the car was run slowly. In addition to the testimony offered, the jury also saw the premises where the collision occurred. Upon the crossexamination of the plaintiff the following occurred: "Q. Now, Mr. Deitsch, when you testified here on the last case, you were asked this question: Assuming that you were approaching the street crossing with this rig, a six-horse team, and so on, and you saw the car approaching, coming at an apparent rate of about six miles per hour, how far would you, in your judgment, consider that the car should be away to justify you in starting to cross? "A. Well, that is something I could not tell, unless it was coming right there at the crossing. "Q. You testified in the previous case that you would not consider it reasonably safe to make the crossing under those circumstances if the car was less than 500 feet away, did you not? "A. Well, I could not figure it out or "Q. Well, didn't you so testify? "A. Yes, but "Q. Answer my question, didn't you so testify? "A. I testified; yes, but "Q. And that was your deliberate judgment at that time, was it not? "A. Well, I could not tell unless I was at the crossing. "Q. You did so testify, didn't you? "A. Well, I said I could tell if I was right there. "Q. No; I say you testified just as I have said here? "A. Yes; but I had no idea of the distance or anything. I could not figure it. I didn't know. 66 "Q. When you were questioned on the previous trial you said that when you would come to a crossing that way, and saw a car coming at an apparent rate of six miles per hour, and only about an ordinary block away, that you would not consider it reasonably safe to attempt a crossing, didn't you? "A. I have no idea "Q. Did you so testify? "A. Yes, but I don't know how big a block was or anything. "Q. You don't know how long an ordinary city block was? "A. No, sir. "Q. And yet you have been in all the leading cities of the United States and Canada driving on the streets? "A. Yes, sir. "Q. And you know that the distance from that second light to where your team was when you made that crossing was about the length of an ordinary city block, didn't you? "A. I didn't know just how far it was. I know there was two lights there.' On the direct examination he had testified that when he started to cross the track the car was beyond the second arc street light. Other witnesses testified to the same thing. A plat made from actual measurement shows that the second arc light was 460 feet from the place of collision. Many assignments of error are made, but we do not think it necessary to discuss them all. Counsel asked the court to charge the jury: "Except in case of necessity, such as did not exist in the case at bar, plaintiff would have no right to turn upon the track if it was reasonable to suppose that his occupancy of the track would compel the car, in order to avoid collision or injury, to reduce its speed below that at which it had the right to run. The right of way on its tracks belongs primarily to the street-car company in this sense, viz., that while vehicles have also the right to drive on and across the portion of the roadway occupied by street 155 MICH.-2. railway tracks, when and where the tracks are not in actual occupancy of street cars, yet vehicles are required to turn out and yield the right of way in the face of approaching cars, and are also not to turn upon street-railway tracks in the face of approaching cars so as to impede their lawful movement and progress.' It was claimed that the defendant had the legal right to run its cars at this location in the city at a speed of 10 miles an hour, and that, in view of the plaintiff's crossexamination, it was error to refuse the above request. The trial judge upon that feature of the case charged the jury as follows: "In other words, to make it more concise, it is the law that in all cases of negligence, before the plaintiff can recover he must show to the satisfaction of the jury that there was negligence on the part of the defendant which caused the accident, and also that he was free from negligence on his part, and did not by his carelessness contribute to the injury. "It is charged in this case, as a ground of negligence, that this car was being run at an unlawful rate of speed; that it was recklessly and unskillfully managed. In reference to this allegation that defendant was driving the car at an unlawful and excessive rate of speed, you are instructed that it appears, and is conceded in this case, that, under an ordinance of this city granting a franchise to the defendant street-car company, it was permitted to run its cars along the street on which this collision occurred at a speed of not to exceed 10 miles an hour. Therefore it would not be negligent for the company to run its cars at 10 miles an hour or at any speed less than that. So far as the respective duties of the parties in this case are concerned, you are instructed that a street-railway company has no exclusive right to the use of that portion of the street occupied by its track, but a person using the street has a right to drive upon it or across it whenever necessary, provided that person exercises reasonable care and caution in so doing. And people have a right to rely to some extent upon the watchfulness and the prudence of the motorman in charge of the car, and upon his ability to stop his car within a reasonable distance. It would be the duty of the motorman in this case, who represented the company, and who was in charge of the |