barn of Blank & Baker, who cared for defendant's horses and washed and oiled the wagons. The vent in the top of the tank was left open. Plaintiff, a boy 5 years old, and a boy companion between 6 and 7 years old, were playing in this street, and after the drip wagon had been left there climbed upon it. Plaintiff climbing upon the seat in front, and the other boy upon one of the hind wheels. An employé of Blank & Baker saw them there, and went out, telling them to get off from the wagon. Plaintiff was too small to get down without assistance, and the man lifted him down and told both of them to keep off from the wagon. Within a few minutes after this man went back into the barn the two boys climbed back on the wagon, plaintiff getting up into the seat in front, and the other boy up the hind wheel and on to the tank, sitting astride of it near the venthole. While they were in this position the tank exploded, the front end being blown out, and the plaintiff was thrown 20 to 25 feet into the air, and fell upon the pavement near the curb about 20 feet south of the wagon. The only evidence in the case as to the cause of the explosion was given by two women, witnesses for defendant, who were sitting in the doorway of a house a short distance south of the wagon, and another witness for defendant, a man on the sidewalk across the street. One of the women testified that she saw the larger boy when he was sitting on top of the tank light a match and drop it into the venthole. The man testified that he saw this boy lean over and look into the venthole; that he raised his hand up to the venthole, and as he did so the explosion occurred. The other woman testified substantially the same as the man. Both women testified that he was using matches on the street shortly before this occurrence. This boy denied that he had matches, or that he put any match in the venthole. Plaintiff was seriously injured. Besides severe bruises, his arm was broken, and it is claimed that a hernia resulted from the injuries. Defendant asks this court to reverse the judgment for several reasons. We will consider the assignments of error which defendant discusses. The court allowed plaintiff to introduce in evidence an ordinance of the city of Saginaw to show that the drip wagon was left in the street in violation of its provisions. This is alleged as error, for the reason that the violation of the ordinance was not the direct or proximate cause of the injury to plaintiff. The ordinance prohibits leaving any wagons or vehicles in the public streets when not in actual use. It was material as bearing upon the question of the negligence of defendant. Flater v. Fey, 70 Mich. 644; Haines v. Railway, 129 Mich. 475; Binford v. Johnston, 82 Ind. 426. In the declaration the violation of the ordinance is not counted upon as ground for the action, but it alleges that under the terms of said ordinance, and under the law, it was the duty of defendant, when the wagon was not in use, to remove it from the public streets, and that defendant, disregarding the provisions of the ordinance and its said duty, negligently left its drip wagon in the public street. It was not error to allow this ordinance in evidence. The next 23 assignments of error in their order and which are discussed, relate to questions allowed on the cross-examination of defendant's witnesses Jane Truckey and Eloda Dunn and the refusal to strike out the answers thereto. These were the witnesses who testified to the fact that plaintiff's companion threw a lighted match into the venthole of the drip wagon. This was a cross-examination relative to the past history and character of these witnesses for chastity. Such examination, if allowable, was only material as bearing upon their credibility. The extent to which such examination should be permitted is a matter of discretion with the trial judge, with which this court will not interfere, unless there is clear abuse of such discretion. People v. Harrison, 93 Mich. 594; Knickerbocker v. Worthing, 138 Mich. 239, and cases cited. While this court might well say in this case, as was said in Beebe v. Knapp, 28 Mich. 72, that the court below would have wisely exercised its discretion in excluding some of this examination, yet, on account of the latitude of discretion allowed on cross-examination as to the past life and conduct of a witness, it cannot say as a matter of law that it was error to permit it. Several errors are assigned upon cross-examination of defendant's expert witness W. H. Barthold, a consulting engineer in the employment of defendant and other gas companies. The witness had testified at length as to the constituent parts of the drips pumped from the service pipes into the tank, as to the vapors it generated, as to the illuminating gas always pumped with it, as to the per cent. of air necessary to make the mixture explosive, and that these materials were always present in the tank, and with sufficient heat and air would always explode. The questions referred to with the answers and the objections were as follows: "Q. When that tank was left in the street with horse detached the proper thing to have done would be to cover that vent in the top of the tank to prevent any possibility of matches or sparks or anything of that kind getting into it? (Objected to as incompetent. It is for the jury. Overruled. Exception.) "Q. When it was one-third full from the drip pots under the pipes? (We object to that as incompetent with the addition.) "The Court: He may answer. (Exception for the defendant.) "A. It should have been closed for the purpose of keeping out matches, yes. * * ** "Q. To leave it there to make it safe from an explosion which could blow it up, it should have been closed? (Objected to as incompetent.) "The Court: He may answer. (Exception for defendant.) "Q. That is right, isn't it? "A. It should have been closed to keep out any foreign substances. "Q. Which would explode it. If it had been closed, even if it was one-third full of these gases and water, fire couldn't have got in, and you wouldn't have had any explosion, would you? (Objected to as incompetent.) "The Court: He may answer. (Exception for defend ant.) "A. It could have got in by opening the vent. "Q. But to have it absolutely safe when stored it should be put where the vent is covered up and free from fire and heat which would cause an explosion? "Mr. Humphrey: I object to that as incompetent. "The Court: He may answer. (Exception for defendant.) "A. To make it absolutely safe we would have to lock it up so nobody could get at it." It is urged that these questions were incompetent and immaterial because: (1) It was a question for the jury to determine whether sufficient precautions were taken to prevent fire from getting into the tank, and the answers of witness were merely opinions; (2) the questions were immaterial because there was no duty imposed upon defendant to make the tank absolutely safe. We have given the objections in full from the record, and no objections were made on the ground of immateriality. All of these objections but one were too general, and those will not be considered. The objection at all specific is the first one-that it was incompetent on the ground that it was for the jury to determine. As before stated, this witness was an expert, and thoroughly acquainted with the explosive nature of the contents of this tank. He had testified at length, intelligently, and specifically upon these matters upon which he was being crossexamined. We think it was proper cross-examination, and also proper as showing the knowledge of the witness, with which defendant was chargeable, of the nature of the contents of the tank, and how it could be protected from explosion. Defendant's contention is that under the undisputed evidence in the case plaintiff was not entitled to recover, and the jury should have been so instructed; that from the proofs in the case it followed, as a matter of law: (1) That defendant was not guilty of any negligence which was the proximate cause of plaintiff's injury; (2) that plaintiff was a trespasser. It is an undisputed fact in the case that the drip wagon was left in the public street by defendant's agent, and that the venthole was uncovered. It is practically admitted that defendant is chargeable with knowledge of the contents of the tank and the conditions necessary to render them actively dangerous. It cannot be seriously claimed that this wagon was rightfully in the highway, nor that the facts show that it was guarded or protected while standing upon the highway. It is true one of the firm which owned the barn had warned these children to go away and not to play around there, and on this occasion one of the barnmen a few minutes before the injury had lifted the plaintiff down from the seat of the drip wagon, and told the boys to go away and keep off from it. The children had a right to play on the highway, and this wagon was easily accessible and attractive to them as they were lawfully playing upon the highway. We cannot hold that putting these children off from the wagon and warning them away and paying no further attention to them amounted to properly guarding and protecting this property. It was negligence on the part of the plaintiff to leave this wagon in this manner in the public highway. It is contended that plaintiff in this case was a trespasser and cannot recover-citing Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310), and Kaumeier v. Railway, 116 Mich. 306 (40 L. R. A. 385). Ryan v. Towar, which holds that one is under no obligation of care toward a trespasser upon his land, is not, in our opinion, applicable to this case, where defendant negligently left this drip tank standing in a public highway. The following quotation from Wharton on Negligence (2d Ed.), § 112, is, in our judgment, applicable: "It is negligence to leave such an instrument on a place of public access, where persons are expected to be constantly passing and repassing, and where such persons are not required to be on their guard, or where children are 148 MICH.-3. |