Airikainen v. Houghton County St. Ry. Co.

• Decision Date: 15 November 1904
• Court: Michigan Supreme Court
• Parties: AIRIKAINEN v. HOUGHTON COUNTY ST. RY. CO.

101 N.W. 264

138 Mich. 194

AIRIKAINEN v. HOUGHTON COUNTY ST. RY. CO.

Supreme Court of Michigan

November 15, 1904

Error to Circuit Court, Houghton County; Albert T. Streeter, Judge.

Action by Charles Airikainen against the Houghton County Street Railway Company. From a judgment in favor of plaintiff defendant brings error. Affirmed.

Gray, Haire & Stone, for appellant.

W. A Burritt, for appellee.

MOORE C.J.

In August, 1902, a cow belonging to plaintiff, which he allowed to run at large, was killed while on the track near a crossing, by a car belonging to the defendant. From a judgment in favor of the plaintiff the case is brought here by writ of error.

Counsel for appellant say the questions involved are: (1) Whether the court erred in refusing to permit the witness Davey to testify whether, in his judgment, the cow could have got across the track before the car struck it if it had not suddenly stopped. (2) Whether the following question, put by plaintiff's counsel to the witness Wint was not improper, and prejudicial to defendant, viz 'You are the man that was running the car at the time Mr. Boivine was injured?' (3) Whether the remarks of plaintiff's counsel to the jury, suggesting that, if the defendant had put the conductor and the fifty-seven passengers on the car upon the stand, they would have testified against defendant, were not improper, and prejudicial to the defendant. (4) Whether the court erred in refusing to instruct the jury as requested by defendant in its third request to charge. (5) Whether the court erred in instructing the jury upon the question of what constitutes gross negligence. (6) Whether the court erred in refusing to direct the jury to find a verdict for the defendant as requested by its fourth request to charge. (7) Whether the court erred in overruling and not granting defendant's motion for a new trial for the foregoing reasons, and because the verdict of the jury was against the weight of evidence. We will consider these questions in the order presented by counsel.

1. Mr. Davey was a passenger. He testified to seeing the cows, and the distance the cows were from the car, and what they did. He was then asked: Q. 'When you saw her step upon the track, did you think she would clear the track before the car reached her?' Upon objection the question was excluded. We do not need to decide whether this was error, because almost immediately, upon the cross-examination, he stated: 'I did not see it [the cow] stop, but it was on the track the last time I saw it. I thought it was going to get across, and was surprised that the collision occurred.' It will be observed the defendant obtained the opinion of the witness as fully as though the question of counsel had been answered, and the error, if it was one, was not reversible error.

2. The record shows in relation to this assignment of error as follows: Mr. Wint was the motorman. At the commencement of his cross-examination the following occurred: 'Q. You are the man that was running the car at the time Mr. Boivine was injured? Mr. Gray: If your honor please, I have been anticipating something of that kind. I think it is entirely improper. No reference should be made to any prior accident. It certainly will tend to prejudice the jury. The Court: I think that is so, Mr. Burritt. It does not seem to me to be necessary to go into the facts of other accidents. You cannot prove negligence in this accident by other accidents.

Mr. Burritt: That is not the purpose. It is only to refresh the witness' memory.' This occurrence was one of the reasons assigned on the motion for a new trial. In disposing of the motion the trial judge said: 'In the brief counsel urges: 'True, the court held that the question was improper, but in a very mild way, and we do not think it can be said that the impression produced (and, we say, deliberately and intentionally produced) on the minds of the jury was removed by the court's remarks.' I can hardly agree with counsel. An explanation was made, although it does not appear in the record, which would do away entirely with any question of deliberate intention on the part of the counsel in asking the question. Nor does it seem to me a very mild way in which the court held the question improper. Mr. Gray did not simply object to the question. With force he characterizes it as entirely improper, and designed to prejudice the jury; and, while making no formal objection, his remarks were adopted and enforced by the court in the first sentence, 'I think that is so, Mr. Burritt,' including everything that has been said by Mr. Gray with regard to the question. At the time that seemed to be all that was necessary, even supposing the question had been one deliberately introduced in the case by the attorney. If it were not enough in the mind of the objecting counsel, he could have requested reference to it in the charge.' The question was an improper one. The court so told the jury, and apparently judge and counsel alike thought all had been said that was necessary. If cases are to be reversed because of the situation shown here, it would be necessary to reverse nearly every hotly contested case.

3. This is based on the following: During the argument of counsel for plaintiff to the jury the following proceedings were had: 'Mr. Burritt: Where is the conductor that was on that car? Mr. Gray: I object to that, your honor. Mr. Burritt: I was saying, gentlemen of the jury, that they say that this lady, our witness, is the star actor. The motorman has testified. Where is the conductor who was running this car, and who had charge of it? Why don't they bring him here? Mr. Gray: To that we object, your honor, as entirely improper. The Court: I think that counsel has a right to comment on witnesses that were not produced. That were on the car. Mr. Gray: I take an exception. Mr. Burritt: I say, gentlemen of the jury, where are the fifty passengers? The testimony is that there were fifty passengers on the car. We have only one of these passengers here. Mr. Gray: We object to that statement for the same reason, and take an exception. Mr. Burritt: We might have had, gentlemen of the jury, fifty-seven or fifty-eight star actors here had the railroad company wanted other star actors. They only brought one.' The defendant had sworn one passenger and the motorman as witnesses. The record shows the car had a conductor and upwards of 50 passengers. It was not shown any effort had been made to obtain their attendance, nor was the absence of any of them accounted for. It is evident counsel had criticized severely one of the witnesses for the plaintiff. Under these circumstances we do not think, if the allusion made exceeded the latitude to which he was entitled in making his argument, that it constituted reversible error.

4, 5, and 6 may be considered together. The defendant offered four written requests to charge. The first two were given. The third and fourth were not given. The third reads as follows: 'It is not the duty of street railway companies to stop or reduce the speed of their trains or cars when they see cows or other animals alongside their tracks. It is only when such animals are on their tracks, or the men in charge of the trains or cars have good reason to believe that they will go thereon before said trains or cars shall have passed, that the company is called upon to stop or reduce the speed of such trains or cars. When they have notice or knowledge of such a situation that to proceed will probably result in injury to or the destruction of persons or property, then they are required to use all possible precaustions to guard against such injury or destruction; but until they have notice or knowledge of such a situation it is their right to...