Balch v. Grand Rapids & I.R. Co.

• Court: Michigan Supreme Court
• Writing for the Court: CAMPBELL, J.
• Citation: Balch v. Grand Rapids & I.R. Co., 44 N.W. 151, 78 Mich. 654 (Mich. 1889)
• Decision Date: 28 December 1889
• Parties: BALCH v. GRAND RAPIDS & I. R. Co.

44 N.W. 151

78 Mich. 654

BALCH v. GRAND RAPIDS & I. R. Co.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Osceola county; J. BYRON JUDKINS, Judge.

T. J. Obrien and J. H. Campbell for appellant.

Pratt, Hatch & Davis, for appellee.

CAMPBELL J.

Plaintiff's intestate was killed at Cadillac, in Wexford county, on March 19, 1886, by defendant's locomotive and tender. In the early evening of that day the locomotive and tender were backing up northward, towards Mason street, on defendant's main track, pushing a couple of cars in the same direction on a parallel track, west of the main track by means of a push-pole running across from the rear end of the water-tank to the rear end of the hindermost of the two cars. The testimony showed that decedent was struck by the push-pole, and thrown under the tank-wheels, and run over, so that the upper part of his chest was crushed in so as to be partially severed internally, if not externally, from the rest of the body. As the case was submitted to the jury, the chief dispute was whether deceased was, when struck, on the sidewalk in Mason street, or some distance south of it, between defendant's tracks. The court below directed the jury that they could give no verdict for plaintiff unless, in addition to finding negligence in defendant, and freedom from contributory negligence in deceased, they found that the latter was in Mason street when struck. Several special findings were made by the jury, which defendant claims do not harmonize with the general verdict. The jury found a verdict of $2,000 for plaintiff.

Some minor points of error were presented on the argument; the chief contention, however, being that there was no case made for the plaintiff, by reason of the injury appearing to have been inflicted away from any part of Mason street. We do not think that the other questions present anything new or important, and they do not seem to us to require notice. If there was any case to go to the jury at all, the circuit judge was quite as liberal to the defendant, and quite as exacting of the plaintiff, as required by the most liberal rules of law applicable in such cases.

This case came up once before from Grand Traverse county, and is reported in 67 Mich. 394, 34 N.W. 884. It was the opinion of this court on that occasion that the jury had made a mistake in estimating damages, and had given a verdict for a sum apparently $1,600 beyond what the correct calculation from the testimony would have made out. The verdict of $2,000 in the present case is considerably lower than the outside range of the testimony would have warranted, and is not excessive. That was the only error which this court on that occasion saw fit to pass on. If that record presented the questions now raised, it was not then deemed decisive. After a new trial had been had subsequent to the remanding of the cause, which was set aside for excessive damages by the trial court, the venue was changed to Osceola county, where it is evident there could have been no disposition in the jury to multiply damages. The complaint made is that the testimony of locality was not such as to authorize the verdict. It is not in our province to weigh the testimony and we shall not attempt to do so. All that is necessary is to indicate some of the disputed points, as connected with those not disputed. The body of deceased was removed from between the engine and tender wheels about the middle of Mason street, which is shown to be a street about 80 feet wide. There was testimony that some clothing which he had just got from the wash, and the satchels in which he carried books for sale, and scattered books, were found near him, and that blood in considerable...