Culver v. South Haven & E.R. Co.

• Decision Date: 14 December 1904
• Citation: 138 Mich. 443,101 N.W. 663
• Parties: CULVER v. SOUTH HAVEN & E. R. CO.
• Court: Michigan Supreme Court

101 N.W. 663

138 Mich. 443

CULVER v. SOUTH HAVEN & E. R. CO.

Supreme Court of Michigan

December 14, 1904

Error to Circuit Court, Van Buren County; John R. Carr, Judge.

Action by William Culver against the South Haven & Eastern Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Samuel H. Kelley (Edward Maher, of counsel), for appellant.

T. J Cavanaugh and L. A. Tabor, for appellee.

MOORE C.J.

The plaintiff sued defendant to recover damages received by him while acting as a brakeman. He recovered a judgment for $15,000. A motion was made for a new trial, which was overruled. No request was made of the trial judge that he file his reason for overruling the motion, and none were filed. The case is brought hereby defendant by writ of error.

Counsel for defendant contend: (1) The verdict was against the overwhelming weight of the evidence. (2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence. (3) That the defendant did not receive a fair trial, owing to misconduct. (4) That the learned trial court erred in ruling upon evidence. (5) That the learned trial court erred in charging the jury. We will consider these questions in the order presented.

1 and 2 may be considered together. Was the verdict overwhelmingly against the weight of evidence? Can we say, as a matter of law, Culvery was guilty of contributory negligence? Without going into details, we may say an examination of the record satisfies us the plaintiff presented a case making it the duty of the trial judge to submit it to a jury under proper instructions.

3. This assignment of error relates to the conduct of plaintiff's counsel during the taking of testimony and while presenting the case to the jury. We have no hesitancy in saying that if the conduct of Mr. Tabor, about which complaint is made, was the only improper conduct of counsel, we should reverse the case, and direct a new trial. The misconduct, however, was not confined to counsel upon one side. We do not feel it our duty to attempt from this record of nearly 300 pages to decide who of the counsel was most to blame. We do say the conduct of Mr. Tabor on one side and Mr. Mayer on the other was such as ought not to be permitted in any court of record anywhere. The language of Justice Shauck in Railroad Co v. Pritschau (Ohio) 69 N.E. 663, is pertinent here 'If it be assumed that the orderly administration of justice is not to be insisted upon, and that the truth may by accident, be evolved from such scenes as were here enacted, it is sufficient that the misconduct of counsel was in its natural effect prejudicial to the rights of the plaintiff in error, and it does not appear from the record that it did not in fact result in such prejudice. An examination of the cases cited and others justifies the conclusion that for such misconduct, and even for that which is less flagrant, judgments are always reversed, unless it is made to appear that its natural effect has been averted by court or counsel, or both. * * * Throughout the record a trial judge, personally distinguished for learning and probity, appears as a grieved observer of continued improprieties which he thought himself powerless to suppress. It is entirely clear that he was unable to end them by admonition and entreaty, but he was clothed with ample power to suppress them inexorably. The county in which he sat has the complement of county buildings. * * * It is much more important to observe that the trial judge should not have permitted such conduct on the part of counsel as would result in a mistrial. This was due not only to the parties to the suit, but to the public. * * * The observations of the trial judge from time to time show that he had an intelligent appreciation of the gravity of the offenses which were committed before him. Why he thought it less important to suppress them than to give correct instructions to the jury as to the law of the case...