fendant moved the court to direct a verdict in its favor for three reasons: First, because defendant was not liable, and could not be made liable, under its act of incorporation, for the claim asserted in the declaration; second, because it did not appear that plaintiff had sustained any damages by the death of deceased; third, because deceased was guilty of contributory negligence. The motion was overruled. At the conclusion of the testimony counsel for defendant again moved the court to direct a verdict in its favor. This motion was overruled, and the case was given to the jury. On the evening of the same day, and in the absence and without the knowledge of counsel for either party, the jury were brought into the courtroom and the following proceedings were then had: "The Clerk: Gentlemen, have you agreed upon a verdict?

"Foreman: We have not. * * *

"The Court: Are you thoroughly satisfied it is impossible for you to agree upon a verdict?

"Foreman: I think so.

"The Court: It has been a very expensive trial for this county, and a matter we are not interested in locally, and I was in hopes you could agree upon a verdict, but I would rather you should disagree than that any man should violate his conscience in the matter. You are all satisfied you cannot agree, are you? (Jury answers in affirmative.) The court is satisfied that the deceased was guilty of contributory negligence in the manner in which he approached the bridge on that night, no matter whether it was dark or light. If it was dark, it was his duty to get off and stop and see what the danger was. If it was light, then he certainly could see what was ahead of him. There can be no question about it. Therefore I take it upon myself to direct you to render a verdict in favor of the defendant of not guilty. You will receive the verdict, Mr. Clerk."

A verdict was thereupon entered. The case is brought here by writ of error.

The first question demanding consideration is: Was the judge justified in taking the case from the jury upon the ground that it could be said, as a matter of law, de

ceased was guilty of such negligence as to preclude his recovery. In overruling the motion for a directed verdict the trial judge said:

"On the point of contributory negligence of the deceased, I think at this stage, anyway, that it is not at all clear that the deceased was guilty of contributory negligence. There is some dispute with regard to the conditions at the bridge and this draw at the time of the accident, and while the plaintiff has not shown that the deceased was without fault on his part, still, in view of the rule established that there is no presumption of negligence upon his part, I think at this time the court is not warranted in directing on that ground."

There is a printed record of upwards of 300 pages, much of it devoted to descriptions of the approach to the draw, the obstructions in the highway, the draw itself, its appearance when the lights were on, the approach to the bridge and on the bridge itself, the way the deceased was riding, his going into the open draw, his knowledge of the situation before the time of the accident, where the body was found, and where the wheel was found. The testimony was not all to the same effect. One of the witnesses who was on the bridge and near the draw testified in part as follows:

"The swing opened that evening. I heard the signal given before the swing opened. It was a bell, and the occasion of the opening was a boat going through. I never see the boat, but I judge it was an awful slow boat, and it didn't seem to go through the bridge very fast. Í should judge that the swing was open 10 or 15 minutes before the young man rode off. The boat that was going through was not sufficiently large so that it showed any lights to one where we were. I didn't see any smoke coming from it, and there was no warning or signal or notice of any kind given that the bridge was to be opened other than this bell. I saw the bridge open. I never paid much attention to how they opened it. It was only the second time I ever was on it. The first I saw of young Scharman I and the others got down from the railing, and were going to go and watch the boat come through. Young Scharman came on his wheel, and he whistled to

me, and I got out of his road. With reference to the edge of the end of the bridge, I stood [pointing] along here. This is where he was coming. This is the west fixed span, and I should judge we were right in here [pointing]. *

* *

"A. I was walking across from the left-hand side to the right-hand side of the bridge, going east. I was going on to watch the boat come through, and he came up behind me and whistled, and I stepped right out of his road. He was on a bicycle, and, when he whistled, I did not stop or anything. He wasn't going very fast, and I thought he saw the bridge and was going to stop for it, but he kept right on riding.

"Q. Did anyone stop him?

"A. Not to my knowledge.

Q. Did you hear anyone say anything to him at all? "A. No, sir; I never paid much attention to the electric light until we went to run up there after he went

over.

"Q. what did you notice, then?

"A. I noticed it was very dark. I saw him going off over the bridge, and, as soon as he did that, I and Kinsey and Cowan ran up there.

"Q. What did you notice as you looked-whether you could see that the swing was open from where you stood? "A. Well, sir, I knowed the swing was open.

"Q. Other than that you could see?

'Ă. Well, from where I stood we could see the boat on the other side of the swing. They just started through the draw.

"Q. But could you see that the swing was open if you hadn't known it?

"A. No, sir; I could not.

"Q. Why was that?

"A. Well, sir, I didn't seem to pay any attention to it. I knew it was open, and, when I run up there, I went up cautiously. It was pretty dark.

"Q. Was it easy to tell when you got to the place where the swing began?

"A. No, sir.

"Q. What did you observe or notice?

* * *

"A. When we run up there, I couldn't see that draw myself. There was no person on the bridge that I could see, or did see, between me and the open draw. I guess Tom Paradise and that young lady was the closest of anyone who was on the bridge.

158 MICH.-6.

"Q. They were right at the opening?

'A. Yes; so they say. I could not see from where I It was too dark for me to see them.

was.

"Q. When the swing is open, have you noticed the effect that the water has upon absorbing the electric light that is thrown upon it?

Other witnesses testified that the light falling upon the open water made a black looking shadow, and that as deceased approached the west draw, at moderate speed, he looked both up and down the river, and then directly ahead.

It has been held that, in the absence of proof, the presumption is that deceased used due care. Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); Schremms v. Railroad Co., 145 Mich. 190 (108 N. W. 698, 116 Am. St. Rep. 291). It has been held that knowledge of a defect in the highway did not necessarily establish negligence on the part of one injured by reason of such defect. Lowell v. Township of Watertown, 58 Mich. 568 (25 N. W. 517). See, also, Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457); Dittrich v. City of Detroit, 98 Mich. 245 (57 N. W. 125); Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502). The rule of law was stated by Mr. Justice CHRISTIANCY as follows:

"Courts may not always be able to define precisely all the particulars which would be necessary to constitute diligence under all circumstances, and there may even be cases depending upon a complication of facts and circumstances admitted or found to be true, in which it would be better to leave the jury to draw the inference of diligence or negligence than to undertake to draw it themselves. It is frequently difficult, perhaps sometimes impossible, to determine how far the question of negligence or reasonable diligence is a question of law and how far a question of fact. It is generally a question of mixed law and fact; and always, when the facts are

* * *

found or omitted, if they be such that all reasonable men will be likely to draw from them the same inferences, it is a question of law for the court." Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, 293.

Negligence and contributory negligence depend upon the circumstances of the particular case. The general rule is that they are questions for the jury, and they do not become questions of law except on undisputed testimony. Burroughs v. Ploof, 73 Mich. 607 (41 N. W. 704); Fox v. Iron Co., 89 Mich. 387 (50 N. W. 872). This has led to the establishment of the doctrine that all reasonable minds must reach the same conclusion before negligence and contributory negligence will be treated as presenting questions of law exclusively. Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598); Ashman v. Railroad Co., 90 Mich. 567 (51 N. W. 645); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581). See, also, Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Marcott v. Railroad Co., 47 Mich. 1, 6 (10 N. W. 53); Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795); Klanowski v. Railway Co., 57 Mich. 525 (24 N. W. 801). Applying these cases to the evidence disclosed by the record, we think it cannot be said, as a matter of law, that the negli- · gence of the deceased was such as to preclude a recovery.

It is urged that the conclusion of the circuit judge ought to stand for the reason that the plaintiff suffered no pecuniary loss, as the son had almost attained his majority. We cannot say from this record that the damages of plaintiff were only nominal. The circuit judge took a different view of that question from counsel, and left it to the jury in his general charge. He put his direction of the verdict explicitly upon the ground of contributory negligence. In any event, the plaintiff would be entitled to the earnings of his son until he had attained his majority. It is said:

"The conclusion finally reached by the circuit judge is also correct for the reason that the defendant is not liable