Le Beau v. Telephone & Telegraph Const. Co.

• Decision Date: 19 May 1896
• Citation: Le Beau v. Telephone & Telegraph Const. Co., 67 N.W. 339, 109 Mich. 302 (Mich. 1896)
• Parties: LE BEAU v. TELEPHONE & TELEGRAPH CONST. CO.
• Court: Michigan Supreme Court

67 N.W. 339

109 Mich. 302

LE BEAU v. TELEPHONE & TELEGRAPH CONST. CO.

Supreme Court of Michigan

May 19, 1896

Error to circuit court, Wayne county; Willard M. Lillibridge Judge.

Action by McCurdy C. Le Beau against the Telephone & Telegraph Construction Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Philip T. Van Zile, for appellant.

Keena &amp Lightner, for appellee.

MOORE J.

On the morning of May 19, 1893, plaintiff walked down Clifford street, in the city of Detroit, on the way to his office. Near Park Place his attention was attracted to the workmen of the defendant company, who were engaged in tearing up the pavement preparatory to putting in underground wires. The plaintiff continued to watch the workmen, as he walked along in their attempts to cut throught the wall into the area at the corner of Clifford and Washington streets. At that corner, defendant's workmen had been hoisting dirt through a manhole from the area below, and letting material down into the area, but were not so engaged when plaintiff came along. The manhole was also used to let in light to the workmen. The sidewalk was of stone, 11 1/2 feet wide. The manhole was about 10 feet east of the westerly end of the walk, and in line with the cross walk, nearly in the center of the walk, and in line with the cross walk across Washington avenue, and was 22 inches in diameter. It was open, and upon the east edge of it was a barrel. The iron cover of the manhole was on the north side of it. The work done by the defendant was under a permit by the municipal authorities. Plaintiff failed to see the hole, and stepped into it, and fell, striking upon his chin upon the edge of the barrel, receiving severe injuries. Plaintiff sued to recover $10,000 damages for the injuries received by him, The case was tried and submitted to the jury, who returned a verdict in favor of the defendant. Plaintiff appeals, and assigns error upon the admission of testimony.

A map was introduced in evidence, which plaintiff claims was not correct. There was proof, however, that it was approximately correct; and one witness stated it was accurate. Its admission was not error. Hoffman v. Harrington, 44 Mich. 184, 6 N.W. 225; Battishill v. Humphreys, 64 Mich. 494, 31 N.W. 894. Proof was offered that the barrel could be seen from the other side of Washington avenue. This, it is said, is error. We think it competent to show the entire surroundings of where the accident occurred. Counsel for defendant was allowed to show the physical condition of plaintiff for some time before the accident, and that he got a pension. It is said this is error, because he was cured of that trouble before the accident. This testimony occurred on the cross-examination of the witness, where a good deal of latitude is allowed, and, in view of the verdict, cannot be said to be prejudicial.

After the jury had retired, they sent a communication to the judge, inquiring: "If we find that both parties were negligent, then we have to find for the defendant. Was that your charge? Some of the jury understood you so." In the absence of all the counsel, and without recalling the jury, the judge indorsed in writing upon the back of the paper, upon which was written the above question, the following: "Answer: If you find that the plaintiff was guilty of negligence which contributed to the injury, and without which the injury would not have occurred, your verdict should be for the defendant." The judge then sent the paper containing the question and answer to the jury room by the officer. Otherwise than as above stated, no communication passed to the jury while they were deliberating. The judge did not enter the jury room, nor did he communicate with them directly. About 20 minutes after the paper was returned to the jury by the officer, they agreed upon a verdict. Before the verdict was received, and before the jury were brought from the jury room, the judge caused plaintiff's attorney to be summoned, and, defendant's counsel being also in court, the judge stated to them the facts as to the question of the jury and the answer thereto, and showed to counsel the paper on which was written the question and answer. After said explanation by the judge, and after counsel, in the presence of the judge, had read the paper, the jury were brought into court, and returned a verdict in favor of the defendant. At no time prior to the rendering of the verdict did counsel for plaintiff make any objection to said communication, nor to the rendering of the verdict, nor make any suggestion to the judge upon the facts connected therewith, and the verdict was received without objection from either party or their counsel. It is urged this is error, and the cases of Fox v. Color Works, 84 Mich. 682, 48 N.W. 203, and Hopkins v. Bishop, 91 Mich. 334, 51 N.W. 902, are cited by counsel. In the case at issue, counsel made no objection to the course taken by the circuit judge until the verdict was rendered. It seems to be pretty well settled that, after one has knowledge of an irregularity, he cannot remain silent, and take his chances of a favorable verdict, and afterwards, if the verdict goes against him, base error upon it. 2 Thomp. Trials, p. 1976. If the action of the trial court was irregular, the irregularity was waived by making no objection until after the verdict was rendered.

The important question in the case relates to the law of negligence, and on the part of the plaintiff is fairly raised in his third and seventh requests, which reads as follows: "(3) The plaintiff in this case was not bound to be looking out for danger while passing along the sidewalk, and he cannot be said to be negligent if he did not. The law does not require that extreme degree of mental diligence of persons making use of the public walk. Their thoughts may be employed upon subjects of interest or importance to themselves, or wholly diverted by observation directed to other persons making the same use of the walk; and, if this be so, they are not guilty of negligence. It is a sound rule of law that it is not contributory negligence not to look out for danger where there is no reason to apprehend any. So every one has a right to presume that others, owing a special duty to guard against danger, will perform that duty." "(7) If you find, from the evidence, that on the morning of the accident, and at the time it happened, the defendant was at work, by its servants, in the area under the sidewalk, or had been, and had left the manhole partially or wholly uncovered, and that it was only guarded by a barrel which sat near it or even partially over it, and that the plaintiff, while walking along the sidewalk, had his attention attracted by men working in a ditch along the side of the walk, and was not looking for danger, or for any hole or obstruction in the walk, and that, if he had looked, he could have seen the obstruction in the walk, and while so walking along, without warning in time from defendant's servants, stepped into the manhole, and was injured,-in such a case I instruct you that the plaintiff is entitled to recover, and your verdict, should be for the plaintiff." These were not given by the court as drawn by the counsel. Counsel regards this as error, and cites, in support of his position, Congreve v. Morgan, 18 N.Y. 84; Railroad Co. v. Martin, 41 Mich. 667, 3 N.W. 173; Engel v. Smith, 82 Mich. 1, 46 N.W. 21; Sadowski v. Car Co., 84 Mich. 105, 47 N.W. 598; Davenport v. Ruckman, 37 N.Y. 568; Jennings v. Van Schaick, 108 N.Y. 531, 15 N.E. 424; McGuire v. Spence, 91 N.Y. 304; Bowen v. Railway Co., 54 Mich. 496, 20 N.W. 559.

The charge given by the court upon the question of negligence reads as follows:

"The plaintiff in this case must prove two things by a preponderance of evidence. He must prove, first, that the defendant was guilty of negligence. That is the first thing. He must prove, secondly, that he himself was not guilty of negligence,-that the plaintiff was not guilty of any negligence on his part which contributed to the injury. That we call, in law, contributory negligence; and when I speak of contributory negligence, you will know I mean that the plaintiff was guilty of contributory negligence. I say the burden of proof is upon the plaintiff to show both of these propositions, and unless he has shown, and does in every action of damages show, that, your verdict must be for the defendant. That brings us down to the first question which is submitted for your judgment and consideration: Was the defendant guilty of negligence on the 19th of May, 1893, in conducting its work, and leaving that manhole open, as the testimony shows? That is the first question that you have got to pass upon in this case. First, it has been claimed, and it is true, that the defendant was lawfully there; that it was a lawful work that the defendant was engaged upon. He had a right to remove that manhole cover, but he must do his work in a lawful manner. *** He must make his excavating, he must remove his manhole cover, if he does remove it at all, in a lawful manner. Was it in a lawful manner? That depends upon what his duty was under the law. It was his duty, in excavating that area, to remove the cover of the manhole, and to exercise care and precaution for the safety of the passersby, which an ordinarily careful and prudent man would have used, having regard to the work which was necessary to do, and also having regard to the danger to the passersby from the disregard of such care and prudence. I say that the care and prudence which the defendant was bound to exercise must be in proportion to the danger to the passersby from the work, and the injury which was liable to happen to passersby from disregard of such care and

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