witness for the plaintiff, testified relative to the steam cocks:

"Their purpose is to let the flush off from the wings of the cylinder."

In answer to the question: "When steam is let off at that point, in what way does it escape?" he replied:

"It escapes through the steam cocks at the lower side of the cylinder at each side of the engine.

"Q. And can it escape through there excepting when the steam is turned on?

"A. It cannot, sir. I observed this engine as it started up. I don't think that when it first started there was any steam escaping from the steam cocks. I later discovered steam escaping. The engine was about half way between the starting point and the crossing when I discovered steam escaping from the steam cocks. The steam made a whistling and sissing noise. It was somewhat loud."

The testimony of defendant's witness was that steam of no consequence would escape from cylinder cocks unless they were open; that this would be accomplished from the inside of the engine cab; that, if it was desired to get rid of the condensed water, the steam cocks would be opened, and this would let the steam and water escape; that the engine was working hard and made quite a noise. It is true that this witness testified that the steam cocks were not open, but we think it was a question for the jury as to whether they were or not. It was also a question for the jury as to whether, in a situation in which this horse was at the time—as it appears that the steam emitted would come out directly in front of the horse and be likely to cause fright-it was a negligent act. See Geveke v. Railroad Co., 57 Mich. 589 (24 N. W. 675); Hinchman v. Railroad Co., 136 Mich. 341 (99 N. W. 277, 65 L. R. A. 553); Foster v. East Jordan Lumber Co., 141 Mich. 316 (104 N. W. 617).

We think it very clear that it cannot be said, as a matter of law, that the deceased was guilty of contributory negligence. When she approached this crossing, she found the

gates open. She saw an engine at a distance standing still. There was nothing in this situation to give warning that there was danger for her to attempt to pass, in the absence of any signal or warning of danger. The cases cited in which it was held by this court that a railroad track is a warning of danger, and that one may not calculate chances in driving in front of a moving train, are not in point. This engine was standing still up to the time that Mrs. Rademacher had reached the track, according to her testimony, and, when the engine started, it was altogether probable that the safest course for her to pursue was to go ahead. At least, this was a question for the jury. It was also for the jury to say as to whether, in the absence of the emission of steam at that time, the horse would not have got safely over.

It is suggested that the fact that the crossing gates had not been lowered was, under the plaintiff's theory, not the proximate cause, and in the same connection error is assigned upon the instructions relating to this fact, as follows:

"Another negligent act complained of is that defendant failed to lower its safety gates as the engine was started and about to proceed over the crossing. This is one of defendant's duties. You will remember the testimony, and, if you find that the gates were not lowered you may consider it as bearing on the matter of negligence, both the alleged negligence of the defendant and contributory negligence.

"Now, something has been said by counsel that that was immaterial whether the gates were up or down, under the circumstances of this case; but, of course, if having an unobstructed view of the engine she saw it, or should have seen it moving towards her, or towards the crossing before she went upon the track, it would make no difference whether the gates were up or down. She would have no right under such circumstances to attempt to cross. If the engine was standing still, the position of the gates would be immaterial, for, if the engine was standing still and the gates were up, she would have reason to believe there would be no danger in making the crossing."

These two contentions may be considered together. It is evident that the fact that the gates were not down had some influence, as it naturally would, with the driver, Mrs. Rademacher, in determining whether it was safe to proceed. Unquestionably had the engine been in motion, and the plaintiff discovered the fact before driving upon the track, it might well be said that the fact that the crossing gates were not down would not be the proximate cause of the injury. But it was one of the conditions which existed, and which, taken in connection with the fact that the engine was standing still, gave her assurance of safety which induced her to drive upon the track. Nor do we think the jury could have been misled or confused by the instructions upon this branch of the case.

We find no reversible error, and the judgment will be affirmed.

BLAIR, C. J., and GRANT, OSTRANDER, and HOOKER, JJ., concurred.

DETROIT NATIONAL BANK v. UNION TRUST CO.

1. BILLS AND NOTES-CERTIFIED CHECK-HOLDER IN DUE COURSE -GOOD FAITH.

In an action on a check unlawfully certified, without funds of the drawer on deposit, evidence that the checks were withheld from presentation at the drawer's request, and interest charged thereon, that the charges were unusual and usurious, that the loans were made in excess of the legal limit, that a statement of the bank drawn upon was in the possession of the payee showing a small amount of certified checks outstanding, that a former assistant cashier had criticised the system as bad banking, and that the drawer stated to the payee that the bank had no money to pay the checks, tends to show bad faith, and supports a verdict for the defendant.

2. TRIAL APPEAL AND ERROR-SAVING QUESTIONS FOR REVIEW— ARGUMENT-IMPROPER STATEMENTS Of Counsel.

Failing to except to objectionable argument with sufficient distinctness to be heard by the court and counsel, prevents a review on appeal, and is not excused by a previous warning of the trial court not to commit error and not to expect him to control the attorneys.

Error to Washtenaw; Kinne, J. Submitted October 5, 1909. (Docket No. 6.) Decided November 5, 1909.

The Detroit National Bank filed its claim with the Union Trust Company, receiver of the City Savings Bank, on certain certified checks, and on disallowance of its claim filed its petition to intervene. An issue was framed and tried on the law side of the court, resulting in judgment for the receiver, which is reviewed by claimant on writ of error. Affirmed.

Henry A. Harmon (Geer, Williams, Martin & Butler, of counsel), for appellant.

Bowen, Douglas, Whiting & Eaman (James O. Murfin and John C. Donnelly, of counsel), for appellee.

MONTGOMERY, J. This is an action brought to determine the liability of the City Savings Bank to plaintiff upon two checks dated February 6, 1902; one for $100,000, and the other for $110,000, upon which latter check $50,000 has been paid, leaving a balance of $160,000 unpaid on the two checks. Both checks were drawn by Frank C. Andrews on the City Savings Bank in favor of the plaintiff, and certified to be good by the paying teller of the City Savings Bank. When these checks were certified by the teller of the City Savings Bank, Andrews had no money actually standing to his credit upon the books of that bank, and they were therefore falsely and illegally certified.

It is conceded by the plaintiff, and that is likewise the contention of the defendant, that the question of the right

to recovery is determined by the question of the bona fides of the bank. In other words, it is conceded by the defendant that, if the bank was a good-faith purchaser of this check for value, and took it in due course of business, it is an enforceable demand against the assets of the City Savings Bank.

On the first trial of this case a verdict was rendered in favor of the defendant, the case was brought to this court for review, and is reported in 145 Mich., at page 656 (108 N. W. 1092, 116 Am. St. Rep. 319). The contention was made in that case that the uncontradicted evidence in the case established that the plaintiff is a bona fide holder of the two checks. This contention was disallowed, and it was held that under the circumstances of the case as they appeared upon the trial the question of bona fides was a question for a jury. The case has been again tried in the Washtenaw circuit court; the defendant has again recovered a verdict, and the plaintiff brings the case here for review.

The contentions made on this hearing are that the verdict was against the weight of evidence; that the circuit judge erred in the exclusion and admission of testimony; that the court erred in permitting improper comments by defendant's counsel in their arguments to the jury; and that the court erred in refusing to give plaintiff's requests to charge.

In determining the first question, the rule of law established in the case on the former hearing is to be followed; we having held in that case that the circumstances of the case taken together had sufficient tendency to show bona fides as to raise a question of fact for the jury, and that, while plaintiff's cashier testified that he had no knowledge or suspicion of the want of funds in the City Savings Bank, the circumstances of the case tended to negative this statement. It was said:

"It was competent to show the knowledge of plaintiff's officers as to the pecuniary standing, methods, and dealings of Andrews and the City Savings Bank, the volume of