Langworthy v. Township of Green

• Decision Date: 10 March 1893
• Citation: 54 N.W. 697,95 Mich. 93
• Court: Michigan Supreme Court
• Parties: LANGWORTHY v. TOWNSHIP OF GREEN.

54 N.W. 697

95 Mich. 93

LANGWORTHY v. TOWNSHIP OF GREEN.

Supreme Court of Michigan

March 10, 1893

Error to circuit court, Mecosta county; John H. Palmer, Judge.

Action for personal injuries by Willard E. Langworthy against the township of Green. Plaintiff had judgment, and defendant brings error. Affirmed.

M. Brown, for appellant.

Dumon &amp Cogger, for appellee.

McGRATH J.

Plaintiff sued to recover for injuries received by reason of a defective highway, and recovered judgment. The case was before us at the October term, 1891, and is reported in 88 Mich. 207, and 50 N.W. 130. A log was partially imbedded in the highway near the center of the traveled portion, and parallel with the highway. Three or four feet of the log was visible, and the top of the log at that end was from four to eighteen inches above the roadbed. Two other persons sat on the wagon seat with plaintiff. The front wheel struck the log, whereupon one end of the seat dropped into the wagon box, and plaintiff was thrown out. There was testimony tending to show that the wagon seat was out of repair, or not properly fastened to the wagon box, but that question was fairly submitted to the jury by the court. Testimony was offered tending to show that the horse shied at some object in the road, or in the adjoining field, and the court was requested to instruct the jury: "If you find from the evidence in this case that the plaintiff's horses became frightened at some animal or object in William Davis' field, and on account of such fright the wagon in which the plaintiff was riding was drawn against the alleged obstruction in the road, and the plaintiff was thrown out and injured, as alleged, then this plaintiff cannot recover." The court modified this request, and charged the jury as follows: "If you believe from the evidence in this case that the alleged injury was occasioned, not by reason of want of repair or neglect to keep the highway in reasonable repair, and in a condition reasonably safe and fit for public travel, but instead, on account of the plaintiff's horses having become frightened at some animal or other object in William Davis' field, the wagon in which plaintiff was riding was drawn against the alleged obstruction in the road, and the plaintiff was thrown out and injured, then this plaintiff cannot recover." Defendant was not entitled either to the instruction asked or to that given. There was no evidence tending to show that the horse was running away, or that plaintiff had lost control of him. In some of the states a rule has been adopted to the effect that where a horse takes a fright at some object, for which the municipality is not responsible, and runs away, or gets beyond the control of the driver, and an injury is occasioned by a defect in the street, the municipality is not liable, as the defect is not the sole producing cause of the action; but the same cases hold that a horse is not to be considered as beyond control that merely shies or starts, and for the moment has his own way. Hinckley v Somerset, 145 Mass. 326, 14 N.E. 166; Titus v Northbridge, 97 Mass. 258; Clark v. Lebanon, 63 Me. 393; Aldrich v. Gorham, 77 Me. 287; Houfe v. Fulton, 29 Wis. 297. In Vermont, New Hampshire, Connecticut, New York, Missouri, Pennsylvania, Illinois, Maryland, and in Ontario, a different rule prevails, and it is held that, when an accident happens from a negligent defect in a highway, the fact that the horse was at the time uncontrollable or running away furnishes no defense to the action for the injury. Allen v. Hancock, 16 Vt. 230; Winship v. Enfield, 42 N.H. 197; Baldwin v. Turnpike Co., 40 Conn. 238; Ring v. Cohoes, 77 N.Y. 83; Hull v. City of Kansas, 54 Mo. 601; Hey v. City of Philadelphia, 81 Pa. St. 44; Pittsburg v. Grier, 22 Pa. St. 54; Sherwood v. Hamilton, 37 U. C. Q. B. 410; Bassett v. St. Joseph, 53 Mo. 295; Aurora v. Pulfer, 56 Ill. 275. It is unnecessary in the present case to go to the extent of these latter holdings. It is not an uncommon thing for an ordinarily gentle horse to shy at some object, or in the nighttime at the shadow of an object; and it cannot be said as a matter of law that the mere shying of the horse, and not the collision with the obstruction in the highway, was the proximate cause of the injury.

The testimony tended to show that the broken limb was shriveled or withered, and error is assigned because plaintiff was permitted to exhibit the limb to the jury. The text writers and decisions all agree that such exhibitions are not improper for the purpose of exposing a condition such as that endeavored to be shown here. In Mulhado v Railroad Co., 30 N.Y. 370, a physician was called to describe an injury in the plaintiff's arm, and the arm was exhibited in the presence of the jury. The court say: "Such exhibition certainly tended to make the description of the injury more intelligible, and it cannot be supposed that it could have had any undue influence upon the feelings or sympathies of the jury. As well might it be contended that a man who had lost an arm or a leg by a similar injury should not be permitted to appear before a jury to testify in relation to it, lest thereby their feelings might be influenced, and, under the undue excitement created thereby, they might do injustice. We cannot assume that any such consequences will follow such a course of examination; and we cannot perceive that it was objectionable in the present instance." Wharton says: "Injury to the person may be proved by inspection. Thus, in an action to recover damages for an injury to a limb, the injured limb may be exhibited on the trial." Whart. Crim. Ev. 312. Mr. Best refers to this species of evidence as "immediate real evidence, where the thing which is the source of the evidence is present to the senses of the tribunal;" and declares it to be of all proof the most satisfying and convincing. 1 Best, Ev. 307. Mr. Taylor assigns to this class of evidence the highest rank. 1 Tayl. Ev. � 564. Mr. Abbott says: "The injured member may be exhibited to the jury." Abb. Tr. Ev. 399. Mr. Thompson, in an article entitled "Trial by Inspection," collects many cases holding that such exhibitions are proper. 25 Cent....