Hooker, J.
The defendants were receivers of a street railway in Bay City, and were conducting its business at the time of the occurrence of the accident which is the subject of this action. The plaintiff is the administratrix of one George Philip, deceased, and is alleged to be his widow. At the time of the accident, George Philip was yardmaster for the Grand Trunk Railway, and was in charge of a train of 13 freight cars, which was being backed across the street-railway tracks, which were laid along Midland street. The deceased was upon the first car, with his lantern in hand, as the train was backed southward towards Midland street, which car came into collision with a street car upon defendants’ road, whereby he was thrown from the car, and run over and. killed by his own train. At this point the street railway was crossed by two tracks belonging to the Grand Trunk [449]*449Railway Company and one owned by tbe Michigan Central Railroad Company, and there is testimony in the record tending to show that the middle track, upon which deceased’s ^ train approached the crossing, was slightly lower than the others, — perhaps two inches or thereabouts. The train was moving at the rate of four or five miles an hour, and the deceased was acting as lookout upon the end of the train.
The street car was in charge of a conductor, and there was some testimony to the effect that he was upon the front platform of the car, with the motorman, when the collision occurred. Other testimony indicated that he was in the car, going to the rear platform, at that time. There is testimony that the street car did not come to a full stop before an attempt was made to cross the track. There is a dispute about this, however, and there is little doubt that its speed was checked. There is no claim that either the conductor or the motorm&n left the car and went to the track to see if it would be safe to attempt to cross; and it is claimed by the defense that the testimony shows that it would have been unsafe for the motorman to attempt to cross while the conductor was absent, for the reason that, owing to the nature of that particular crossing, the trolley was liable to slip off from the wire, and in such case the car would have been unable to proceed until the conductor should have returned and replaced it. It was also claimed that it would have been useless for the motorman to leave his car to see if the track was clear, for, had he done so, and found the track apparently clear, by the time he could have returned to the car it would have been as dangerous to cross as in the first instance.
The evidence showed that a flagman was kept at this crossing during the daytime by the Grand Trunk Company, but it was after his hours, and he was absent. It was also shown that the Michigan Central Company was in the habit of flagging its trains across this crossing, but that the Grand Trunk Company did not do so. The steam railroads were laid along Williams street, and at the [450]*450corner of Williams and Midland there was a building that obstructed the view of the railroads to the north, and sometimes a car was left on the siding, — i. e., the first track, — still further obstructing the view. . There was a dispute as to whether such a car was there on this occasion. There was some dispute as to how far the motorman could see up the track, which depended somewhat on how near the track he ran his car before putting on the current to cross. After getting upon the track the motorman discovered the train, and reversed his motor, but did not succeed in quite clearing the car.
Counsel for defendants’ most comprehensive point is that the'court should have directed a verdict for the defendants, for the reasons, first, that there was no testimony /that there was any negligence in the management of the street car; second, that the undisputed testimony shows that the Grand Trunk Railway Company was negligent in not flagging its train across the street, by stopping it, and sending a man ahead of it, to see that the crossing was safe.
We cannot say that there was no negligence on the part of the street-car men. Aside from the statute (2 Comp. Laws, § 6464) which requires street-railway companies “to require their drivers to bring their cars to a full stop, before going upon a crossing of the tracks of a steam railroad, and make sure that no engine or cars are approaching, before they proceed to go upon the same,” it was necessary for the crew of the street car, in this instance, to use reasonable care in approaching and crossing this track. We do not agree with the argument of the plaintiff that, under this statute, the failure of the motorman to make sure that no engine or car was approaching was negligence, whatever the circumstances attending his failure, and the court could not say that negligence was conclusively shown for the reason that the fact of the collision shows that he could not have been sure that the crossing was safe. What the judge did was to leave it to the jury to determine whether the motorman took such measures as the circumstances [451]*451required to ascertain whether a train was approaching, leaving to them the determination of what was done, as well as what was reasonably necessary to make sure, as required by law. There was no error in this, and defendants’ point that a verdict should have been directed upon that ground was not well taken.
Upon the other ground, the court instructed the jury:
“But, even though the employé of the defendant be negligent, in order for the administratrix to recover, the deceased himself, who was injured by the neglect, if there was neglect, on the part of the defendant, must also have been free from negligence; in other words, in the operation of his train, of which he had charge, it was his duty to comply with the rules and regulations under which he was acting, and to act with such care and caution as a prudent man would under like circumstances. In running his train down to cross the tracks, he should run it with care, and with such method and system as would be best calculated to avoid accident. He must comply with the rules and regulations of his road, and the man must not be negligent and careless, and thereby contribute towards the accident and injury which followed. If he himself, as the law says, contributed to the injury or accident by fault or carelessness on his own part, that would prohibit his administratrix from recovering, because, where both ■parties contribute to an injury, the law leaves them both to suffer the consequences, whatever they may be, and neither one has a remedy against the other. But if he was handling his train in a cautious, careful, and approved manner, and with no violation of the rules of good judgment and care, such as should be exercised by him under the circumstances, then he would be free from negligence himself, and, if the defendant’s agent’s negligence brought .about the hccident, the defendant is liable.”
Counsel offered the following request:
‘ ‘ If the Grand Trunk Railway Company was negligent in backing or pushing its cars across the track, at the time in question, without either stationing a flagman there, or leaving a man to flag the crossing for the cars in question, then the plaintiff cannot recover.”
The court gave this, but added to it the following quali.fication, viz.:
[452]*452“ If he had anything to do with .or control over the matter, and he was. negligent in the matter, there could be no recovery in this.case.”
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Hooker, J.
The defendants were receivers of a street railway in Bay City, and were conducting its business at the time of the occurrence of the accident which is the subject of this action. The plaintiff is the administratrix of one George Philip, deceased, and is alleged to be his widow. At the time of the accident, George Philip was yardmaster for the Grand Trunk Railway, and was in charge of a train of 13 freight cars, which was being backed across the street-railway tracks, which were laid along Midland street. The deceased was upon the first car, with his lantern in hand, as the train was backed southward towards Midland street, which car came into collision with a street car upon defendants’ road, whereby he was thrown from the car, and run over and. killed by his own train. At this point the street railway was crossed by two tracks belonging to the Grand Trunk [449]*449Railway Company and one owned by tbe Michigan Central Railroad Company, and there is testimony in the record tending to show that the middle track, upon which deceased’s ^ train approached the crossing, was slightly lower than the others, — perhaps two inches or thereabouts. The train was moving at the rate of four or five miles an hour, and the deceased was acting as lookout upon the end of the train.
The street car was in charge of a conductor, and there was some testimony to the effect that he was upon the front platform of the car, with the motorman, when the collision occurred. Other testimony indicated that he was in the car, going to the rear platform, at that time. There is testimony that the street car did not come to a full stop before an attempt was made to cross the track. There is a dispute about this, however, and there is little doubt that its speed was checked. There is no claim that either the conductor or the motorm&n left the car and went to the track to see if it would be safe to attempt to cross; and it is claimed by the defense that the testimony shows that it would have been unsafe for the motorman to attempt to cross while the conductor was absent, for the reason that, owing to the nature of that particular crossing, the trolley was liable to slip off from the wire, and in such case the car would have been unable to proceed until the conductor should have returned and replaced it. It was also claimed that it would have been useless for the motorman to leave his car to see if the track was clear, for, had he done so, and found the track apparently clear, by the time he could have returned to the car it would have been as dangerous to cross as in the first instance.
The evidence showed that a flagman was kept at this crossing during the daytime by the Grand Trunk Company, but it was after his hours, and he was absent. It was also shown that the Michigan Central Company was in the habit of flagging its trains across this crossing, but that the Grand Trunk Company did not do so. The steam railroads were laid along Williams street, and at the [450]*450corner of Williams and Midland there was a building that obstructed the view of the railroads to the north, and sometimes a car was left on the siding, — i. e., the first track, — still further obstructing the view. . There was a dispute as to whether such a car was there on this occasion. There was some dispute as to how far the motorman could see up the track, which depended somewhat on how near the track he ran his car before putting on the current to cross. After getting upon the track the motorman discovered the train, and reversed his motor, but did not succeed in quite clearing the car.
Counsel for defendants’ most comprehensive point is that the'court should have directed a verdict for the defendants, for the reasons, first, that there was no testimony /that there was any negligence in the management of the street car; second, that the undisputed testimony shows that the Grand Trunk Railway Company was negligent in not flagging its train across the street, by stopping it, and sending a man ahead of it, to see that the crossing was safe.
We cannot say that there was no negligence on the part of the street-car men. Aside from the statute (2 Comp. Laws, § 6464) which requires street-railway companies “to require their drivers to bring their cars to a full stop, before going upon a crossing of the tracks of a steam railroad, and make sure that no engine or cars are approaching, before they proceed to go upon the same,” it was necessary for the crew of the street car, in this instance, to use reasonable care in approaching and crossing this track. We do not agree with the argument of the plaintiff that, under this statute, the failure of the motorman to make sure that no engine or car was approaching was negligence, whatever the circumstances attending his failure, and the court could not say that negligence was conclusively shown for the reason that the fact of the collision shows that he could not have been sure that the crossing was safe. What the judge did was to leave it to the jury to determine whether the motorman took such measures as the circumstances [451]*451required to ascertain whether a train was approaching, leaving to them the determination of what was done, as well as what was reasonably necessary to make sure, as required by law. There was no error in this, and defendants’ point that a verdict should have been directed upon that ground was not well taken.
Upon the other ground, the court instructed the jury:
“But, even though the employé of the defendant be negligent, in order for the administratrix to recover, the deceased himself, who was injured by the neglect, if there was neglect, on the part of the defendant, must also have been free from negligence; in other words, in the operation of his train, of which he had charge, it was his duty to comply with the rules and regulations under which he was acting, and to act with such care and caution as a prudent man would under like circumstances. In running his train down to cross the tracks, he should run it with care, and with such method and system as would be best calculated to avoid accident. He must comply with the rules and regulations of his road, and the man must not be negligent and careless, and thereby contribute towards the accident and injury which followed. If he himself, as the law says, contributed to the injury or accident by fault or carelessness on his own part, that would prohibit his administratrix from recovering, because, where both ■parties contribute to an injury, the law leaves them both to suffer the consequences, whatever they may be, and neither one has a remedy against the other. But if he was handling his train in a cautious, careful, and approved manner, and with no violation of the rules of good judgment and care, such as should be exercised by him under the circumstances, then he would be free from negligence himself, and, if the defendant’s agent’s negligence brought .about the hccident, the defendant is liable.”
Counsel offered the following request:
‘ ‘ If the Grand Trunk Railway Company was negligent in backing or pushing its cars across the track, at the time in question, without either stationing a flagman there, or leaving a man to flag the crossing for the cars in question, then the plaintiff cannot recover.”
The court gave this, but added to it the following quali.fication, viz.:
[452]*452“ If he had anything to do with .or control over the matter, and he was. negligent in the matter, there could be no recovery in this.case.”
Counsel claim that it was shown, and not contradicted, that the only safe way to operate a train across that street would be to bring it to a full stop and flag the crossing. If this were so, and it conclusively appeared that deceased had full control of and responsibility for the management of the train, as is stated in defendants’ brief and the charge of the court, and not denied in plaintiff’s brief, so far as we can discover, such negligence would be his, and it is. possible that a verdict should in such case have been directed. There was opinion evidence from several witnesses, not objected to, that it was negligent and unsafe to. back the train across the street without flagging, in the absence of a watchman; but we think these opinions were not conclusive of the question, and were properly left to the jury, with the testimony tending to show an exceptionally dangerous crossing. Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594).
The appellants’ tenth request — i. e.: “ If you find that, the accident was the result of concurring negligence upon the part of the defendants and their employes, or either of' them, upon one side, and upon the part of the Grand Trunk Railway Company upon the other, then the plaintiff cannot recover in the action ” — was properly refused.. If the Grand Trunk Railway was negligent in not keeping a watchman, such negligence is not imputable to the intestate. The only theory upon which it can be so contended is that, by engaging in the operation of backing the train in the known absence of a watchman, he assumed the risk. As between himself and his employer this may be true, but these defendants have no rights, growing out of such assumption of risk. If, however, it was negligent to omit the precaution of keeping a watchman, it was negligent to back the train across the street without flagging, and, under the undisputed facts, the deceased was in charge and control of the train, and such. [453]*453negligence (if it was negligence) was his, and, as the judge stated, would preclude a verdict for plaintiff.
The defendants’ counsel claim that the plaintiff was not the lawful wife of the deceased, and offered to prove it by showing that he had a lawful wife living other than the plaintiff. This evidence was excluded. They also offered, but were not permitted, to show that he had children by such wife living. On the other hand, the plaintiff was allowed to testify that the intestate had made an arrangement with her whereby he had agreed to adopt two children of hers by her first husband. • 3 Comp. Laws, § 10428, limits the recovery of damages to pecuniary injury to the persons entitled to distributive portions of the deceased’s estate. To arrive at the amount of these, it is necessary to know who such persons are, and how they have suffered. If the administratrix was not his widow, she was not entitled to a share of his estate; and the same is true of her children by her former husband, so far as appears by this record. It was therefore error to exclude the offered proof, and to admit the testimony about the alleged agreement to adopt her children.
The mortality tables are ordinarily admissible in such cases, as we have frequently held, and were in this case, if there was any foundation for their admission.
Error is assigned upon the argument of counsel, which is alleged to have been intemperate and unfair. We think it open to such criticism. A defendant has a right to have a dispassionate consideration of the questions in his case.
The judgment is reversed, and a new trial ordered.
The other Justices concurred.