any care whatever, he would have seen or heard the approaching train.

It is sought to avoid the conclusion that the plaintiff was guilty of negligence in this regard by this line of reasoning: It is said that the plaintiff had the right to rely upon the performance by the defendant of its statutory duties and at least to expect that the defendant's train would not approach the crossing at a rate of speed which was prohibited or unusual, and that the plaintiff should not be charged with negligence in failing to anticipate that the defendant would violate its plain duty by approaching the crossing without warning and at a dangerous and unusual rate of speed; and it is said that, because of the rate of speed at which the train was approaching at a point 80 feet from the track, the train could not have been seen, and that, if the train was not then in sight, the plaintiff could, had the train approached at a rate not to exceed 10 miles an hour, have reached and passed the crossing without harm, and that therefore, if he took an observation at this point and drove on, it cannot be said, as a matter of law, that he was guilty of contributory negligence in not continuing to look in that direction the whole distance. It will be noticed that by the plaintiff's testimony there is nothing to indicate that he even brought his horse down to a walk at any stage. From reading his testimony the inference would be that his horse was on a trot, or "on a little shack," as he says, up to the time that the train was directly on him. He testifies that he then attempted to turn his horse to the right from the track, and the horse got off the track, but the buggy was struck. There is, however, testimony given by one of the defendant's witnesses, a Mr. Miller, that the horse was trotting until he came within 20 feet of the track, as he should judge, and that then the horse came down to a walk and came onto the track. He did not stop, but continued right along.

It is a fair inference, from this testimony, therefore, that the plaintiff in traversing this distance of 80 feet

was traveling at an average rate of 5 miles an hour. It would have taken the plaintiff about 11 seconds to drive this distance of 80.80 feet. The testimony of plaintiff's witnesses as to the speed of the train at the time it reached the crossing was that it was going 30 miles an hour. While the testimony as a whole very strongly indicates a much less rate of speed at this point, the plaintiff is entitled to the benefit of this statement. Two witnesses traveling side by side, Merrill and Platt, were passed by this train a short distance north of the 569-foot point, and one of them testified that it was running from 30 to 40 miles an hour, and the other that it was running 35 miles an hour. This, taken in connection with the testimony of the plaintiff's witnesses that the rate of speed when it reached the center of Cochrane avenue was 30 miles an hour, and the admitted fact that the train was on an upgrade and with no steam on, leaves it beyond question that the speed of this train for this distance must have been, according to the testimony of plaintiff's own witnesses, from 30 to 35 miles an hour. But if 35 miles an hour be accepted as the correct rate of speed, the plaintiff must have had an unobstructed view while the train was traversing a distance of 450 feet or thereabouts before reaching the crossing, and this view was open to the plaintiff at the very time when the danger was the most imminent, and when the duty of attention to the approaching trains was most imperative. Instead of bringing his horse to a stop in order that he might the better listen, or glancing up the track where his danger might have been discovered, he drove directly onto the track without stopping. We think the negligence of the plaintiff is made out. Shufelt v. Railroad Co., 96 Mich. 327; Jensen v. Railroad Co., 102 Mich. 176; and Grostick v. Railroad Co., 90 Mich. 594.

It remains to consider whether the plaintiff was entitled to go to the jury upon the claim that the defendant was guilty of gross negligence. The term "gross negligence," which excuses the contributory negligence of the plaintiff,

means in this State something more than a mere epithet characterizing the degree of negligence of which a defendant may have been guilty. The theory upon which a recovery is permitted by a plaintiff, himself guilty of contributory negligence, on the ground of defendant's gross negligence, is that where the plaintiff's precedent negligence has been discovered by the defendant or his servant, or should, by the exercise of ordinary care, have been discovered in time to have avoided the injury, and the subsequent negligence of the defendant results in an injury to the plaintiff, the previous negligence of the plaintiff is not a bar to a recovery. This rule was announced by this court in Richter v. Harper, 95 Mich. 221, and was followed in Borschall v. Railway, 115 Mich. 473. There is no testimony in this case which justifies an inference that the defendant's engineer acted maliciously, or that, after discovering the concurring negligence of the plaintiff, he failed to do all that any reasonable man could do to avert the collision. Whatever negligence he had been guilty of had occurred before his discovery of plaintiff's negligence. The case is one which appeals to the sympathy of the court; but, if we follow the fixed rules of law defining the duty of a traveler in approaching a highway crossing of a railway track, we see no escape from the conclusion that the plaintiff in this case was guilty of such concurring negligence as absolutely precludes a recovery.

The judgment will be reversed, and no new trial ordered.

OSTRANDER, MOORE, MCALVAY, and BROOKE, JJ., concurred.

MOODY v. MACOMBER.

APPEAL AND ERROR - CHANCERY APPEALS - ORDER OVERRULING

DEMURRER-STATUTES-CONSTRUCTION.

Act No. 340, Pub. Acts 1907, entitled An act to regulate the practice on appeal in chancery cases," does not in terms, nor by necessary implication, repeal Act No. 58, Pub. Acts 1883, permitting an appeal from an order overruling a general demurrer; said act of 1907 indicating a purpose to regulate the practice only, and not to restrict or enlarge the right of appeal.

Bill by Paul B. Moody, executor of the last will and testament of John B. Sutton, deceased, against John B. Macomber to set aside certain deeds and to quiet title. From an order overruling a demurrer, defendant appeals: On motion to dismiss the appeal. Submitted December 21, 1908. (Calendar No. 23,094.) Motion denied March 30, 1909.

Geer, Williams & Halpin, for the motion.
B. F. Reed, contra.

MONTGOMERY, J. This is a motion to dismiss an appeal taken from an order overruling a general demurrer to a bill of complaint. It is claimed that by Act No. 340, Pub. Acts 1907, entitled "An act to regulate the practice on appeal in chancery cases," the legislature has limited appeals to cases in which final decree has been passed in the circuit court in chancery. A history of the legislation upon the subject and of the decisions thereunder is briefly as follows: By chapter 176 of the Compiled Laws of 1871, being chapter 90 of the Revised Statutes of 1846, as amended, relating to courts of chancery, under the title, "Appeals to the Supreme Court," it was provided, by section 143:

"Any complainant or defendant who may think himself aggrieved by the decree or final order of a circuit court in chancery, in any cause, may appeal therefrom to the Supreme Court."

This was followed by provisions prescribing the method of taking the appeal. It was held under this statute that an order overruling a demurrer was not a final decree or order in such sense as to entitle the defeated party to appeal. Bennett v. Nichols, 12 Mich. 22; Kirchner v. Wood, 48 Mich. 199. In 1883, by Act No. 58, this statute was amended so as to read in part as follows:

"Any complainant or defendant who may think himself aggrieved by the order overruling a general demurrer, or by the decree or final order of a circuit court in chancery in any cause, may appeal therefrom to the Supreme Court."

No amendment in terms to this statute has been since enacted. But in 1907 by Act No. 340, entitled "An act to regulate the practice on appeal in chancery cases," it is provided, by section 1, as follows:

"Hereafter appeals in chancery to the Supreme Court of this State shall be taken and perfected under the provisions of this act, and not otherwise."

By section 2 it is provided:

"Any person conceiving himself aggrieved by the decree of any court in chancery may, within forty days after the filing of the decree, claim an appeal from said decree to the Supreme Court of the State of Michigan,"

etc.

It is the claim of the complainant in the present case that this statute in effect repeals the provisions of the act of 1883, and that the present law is to be construed the same as section 143 of the original act before the amendment. We think it was not the intention of the legislature to effect this result. The term " "decree" is broad enough to include an order overruling a demurrer. See 16 Cyc. p. 472. It is true that such an order is not a final decree, but there is no such relation of the word "decree"