Benedict v. City of Port Huron

• Decision Date: 13 September 1900
• Court: Michigan Supreme Court
• Parties: BENEDICT v. CITY OF PORT HURON.

83 N.W. 614

124 Mich. 600

BENEDICT v. CITY OF PORT HURON.

Supreme Court of Michigan

September 13, 1900

Error to circuit court, St. Clair county; Samuel W. Vance, Judge.

Action by James W. Benedict, executor, etc., against the city of Port Huron. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Avery Bros. & Walsh (O'Brien J. Atkinson, of counsel), for appellant.

P. H Phillips, for appellee.

HOOKER J.

The plaintiff's intestate was drowned through riding a bicycle off from a bridge, at night, while the draw was open to permit the passage of a vessel. Deceased had a place of business about two blocks from the bridge, and was in the habit of crossing the bridge on his way to and from his home. The testimony varies as to the degree of darkness, but it is shown to have been a moonlight night, and a red lamp upon the center of each side of the bridge was facing the street. Commonly a chain was stretched across the bridge when the draw was open, and this chain had been stretched on this occasion, but had been driven against and broken. Notwithstanding this fact, the draw was opened for the approaching boat, without any steps to provide warning to persons approaching being taken. The learned circuit judge left the questions of negligence and contributory negligence to the jury, and they returned a verdict as follows: 'We find that George P. Burgess came to his death through contriburory negligence, and therefore no cause of action.' No requests for special findings had been submitted to them, but, as this verdict clearly shows that it was based on contributory negligence, it necessarily implies that they found the defendant guilty of negligence. It becomes unnecessary, therefore, to discuss the assignments of error bearing alone upon defendant's negligence.

There are other bridges in Port Huron where conditions are similar. The defendant showed that on one or two other occasions the deceased had ridden his bicycle against the chains upon the bridge where he ultimately met his death, and had been violently thrown down upon the bridge. An attempt was made to show that he had done the same upon another bridge, and after the answer had been excluded a similar question was asked as to a third bridge. It was not answered, however. The argument was afterwards made that the fact that the deceased rode against the chain on other occasions tended to show that he was a careless rider, and corroborated the testimony of witnesses that on the night in question he started from his place of business at a rapid pace, with his head down, and was seen thus riding, and warned, when near the chain. It is urged that the admission of this testimony and the conduct of counsel in relation to it and to that excluded, call for a reversal of the case. In his charge the judge said upon this subject: 'Now, in determining whether or not Mr. Burgess on that night in question was guilty of contriburory negligence, you have a right to take into consideration his knowledge of the surrounding facts and circumstances. There was some testimony introducd here tending to show that Mr. Burgess on one or two other occasions had run against the chain on the bridge, and was thrown off his bicycle. Now, that testimony was admitted for the single and sole purpose of showing, or tending to show that Mr. Burgess knew the kind of a barrier that was used there, and so far as it tended to throw any light on the fact that he knew it was a drawbridge, and that it was opened at times for vessels to pass through. The defendant's counsel, in his arguments, said to you that the evidence tended strongly to show what kind of a rider Mr. Burgess was on his bicycle. Now, that argument was not proper. Counsel was distinctly advised before that testimony came in that it could not be used for that purpose. You have no right to consider that testimony for the purpose of showing that Mr. Burgess was a careless rider, because, though he may have been careless at other times, that does not show that he was careless on this night. Whether he was or was not careless on the night he was drowned must depend upon the evidence bearing upon his conduct that night, and not at any other time, so that for that purpose you will disregard that testimony; but you may consider it for the purpose of showing his knowledge of the bridge and the surrounding circumstances and the guards that were used there, but for no other.' It was certainly competent to show that the deceased was acquainted with...