that when the motorman saw this big wagon, heavily loaded with coal, upon the tracks, and knew that the tracks were slippery, and did not put his car immediately under control and so keep it, but simply cut off the current and let the car roll along, that the question of negligence was not one to be submitted to the jury.

We find nothing in the case of Bush v. Railway Co., 113 Mich. 513 (71 N. W. 851), that conflicts with this view. In that case the question of negligence in the management of the car, under similar circumstances, was submitted to the jury, with approval of this court.

Our attention is also called to the case of Levy v. Railway Co., 164 Mich. 572 (129 N. W. 683). We think a distinction should be made between that case and the instant case in this: In the Levy Case the motorman saw a man standing upon the track when a single step would have placed him beyond any danger. In the instant case the motorman saw a heavily loaded wagon, drawn by horses, the team and wagon being at least 25 feet in length, attempting to cross the track ahead of his car. In the nature of things, it would take considerable time for them to move off. We think the difference is apparent.

In the case of Ablard v. Railway, 139 Mich. 248 (102 N. W. 741), this court said:

"It was the duty of the motorneer to have the car under such control as to admit of its being stopped after he became able to discover objects on the track, and before a collision with such objects should occur, and it was his duty to give timely warning of his approach."

2. The assignment of error upon which this proposition is based does not sustain the position of counsel. Counsel says, in argument, that the court should have excluded the evidence that the car that ran into the

wagon was running faster than other cars had run on the morning of, and before, the accident happened. The assignment of error is based on the admission of the testimony which we have copied above. The evidence, instead of showing that the car which ran into the wagon was running faster than other cars, was to the effect "they were stopping just like they did on other days." We cannot see that any point is raised in this assignment for us to consider. If there was error in permitting the question to be asked, the answer was harmless, and the error without prejudice.

3. Notwithstanding the contention of counsel, and bearing in mind the holding of this court in Nissly v. Railway Co., 168 Mich. 676 (131 N. W. 145, 135 N. W. 268, Ann. Cas. 1913C, 719), we do not find that there was any error in the ruling of the court to permit evidence as to the effect of the application of sand upon the track. We think that the matter was properly taken care of by the trial court in its charge to the jury, as above set forth.

4. We have examined the charge of the trial court with care, and are of opinion that it did not err in refusing to give defendant's seventeenth and eighteenth requests to charge, for the reason already stated, that there was a fair question for the jury upon the subject of whether the motorman properly put his car under control, and so kept it when he saw the impending danger; and we find no error in the modification of defendant's requests.

While the court did not give appellant's thirtieth request, yet it did instruct the jury as to the burden of proof and the duty of plaintiff to prove negligence of defendant, in the following language:

"The burden of proof rests upon the plaintiff in this case to satisfy you by a fair preponderance of the evidence of the negligence of the defendant Detroit

181 Mich.-10.

United Railway in the particulars charged in her declaration against it."

In conclusion, we will say that it appears to us that the charge of the trial court was as favorable to the appellant as could be reasonably asked.

We find no error in the record of which the appellant should complain, and the judgment of the circuit court is affirmed.

MCALVAY, C. J., and BROOKE, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

EMERY v. EMERY.

1. DIVORCE-EXTREME CRUELTY-PROFANITY.

The use of profane language by a husband toward a refined wife constitutes extreme cruelty and is ground for a divorce.

2. SAME-IMPROPER CONDUCT-EXTREME CRUELTY.

Evidence that defendant had violent fits of anger and used

profane language toward his wife, pointed a loaded revolver at her, forced her out of the house and locked her out, that he was harsh in his treatment of her before her confinement, and domineered over her, and showed her but little affection, also tending to show that he was not an affectionate or considerate husband, and his conduct made it impossible for them to live together, entitles complainant to a decree of divorce, notwithstanding that complainant was nervous and at times inclined to parade her troubles before her parents.

3. SAME-APPEAL AND ERROR-EVIDENCE.

Notwithstanding the court below had the advantage of seeing and hearing the witnesses, this court, on appeal, is

not relieved from the duty of exercising its own judgment in passing upon the evidence in the case.

4. SAME-HUSBAND AND WIFE-ALIMONY-SEPARATION AGREEMENT -PROPERTY INTERESTS.

An agreement entered into by a husband and wife, after their separation and after the starting of divorce proceedings, settling their property interests, where fair and free from collusion, is not only lawful but commendable.

Appeal from Genesee; Wisner, J. Submitted April 27, 1914. (Docket No. 146.) (Docket No. 146.) Decided June 1, 1914.

Bill by Harriet Z. Emery against William J. Emery for divorce. From a decree for defendant, complainant appeals. Reversed.

William V. Smith, for complainant.

John F. Baker, for defendant.

STONE, J. The bill of complaint in this cause was filed by the wife to obtain a divorce from the husband on the ground of extreme cruelty. The parties were married January 27, 1909, at which time the complainant was 24 years of age and the defendant 25. They lived together until July 6, 1910, when they separated. One child, Max Earl, was born January 27, 1910, just one year after the marriage.

The specific acts of cruelty charged in the bill are to the effect that soon after their marriage defendant was guilty of coarse and unkind treatment of complainant, cursing and swearing at her; that complainant was a person of religious convictions, and, when able, a regular attendant upon church; that defendant seldom spoke kindly to her, but had fits of violent anger, at which times he used profane language and cursed her, and the specific language used is stated in the bill. She further complains:

"That he kept a loaded revolver in their room in plain sight, and your oratrix was by his conduct and

the presence of such revolver kept in a state of nervous excitement and fear. That during the period of her pregnancy defendant's conduct continued to be the same. That on one occasion, and about three weeks after the birth of her child, defendant pointed the revolver toward your oratrix, and seized her and said he would as soon shoot her as to look at her. That soon after the birth of her child defendant, and on such occasions as defendant was not working, refused to get up and build the fire, and your oratrix was obliged to do so, although she was not recovered from the illness attending her confinement. That his course of cruelty continued up to the time of their separation in July, 1910, and he continually found fault with your oratrix, and required her to work beyond her strength, and on two occasions she was obliged to call on the police for protection. That he forcibly put her out of the house on July 5, 1910, and she returned that night, but next day she left him because of his violence."

In her bill she prayed for the care and custody of the said child until he should attain the age of 14 years.

In and by his answer the defendant denied that he treated complainant in a cruel manner; denied that he had fits of violent anger, or that he was habitually profane. Quoting the language of the answer he

"Denies that he ever pointed the revolver at her and said that he would as soon shoot her as look at her; denies that he habitually found fault with complainant; denies that he required her to work beyond her strength. Defendant admits that he kept a loaded revolver in the house, which he did as a protection, and as any householder might do, and for the further reason that there were a number of hoboes seen in that vicinity; although the revolver was kept in the house defendant denies that the complainant was kept in a state of nervous excitement and fear, for this defendant had taught the complainant the use of it, and she felt it rather a protection than a menace and danger; however, this defendant did, upon one occasion, after they had retired at night, pick up the revolver from the dresser, and state to the complain