Dompier v. Lewis

• Decision Date: 24 June 1902
• Citation: 91 N.W. 152,131 Mich. 144
• Court: Michigan Supreme Court
• Parties: DOMPIER v. LEWIS.

91 N.W. 152

131 Mich. 144

DOMPIER v. LEWIS.

Supreme Court of Michigan

June 24, 1902

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Alfred L. Dompier against Henry B. Lewis. From a judgment for defendant, plaintiff brings error. Affirmed.

Oscar M. Springer (Timothy E. Tarsney, of counsel), for appellant.

Edwin F. Conely and Orla B. Taylor, for appellee.

MONTGOMERY, J.

This is an action for negligent injury. The plaintiff at the time of receiving the injuries in question was 17 years of age, and was employed in the defendant's machine shop as a helper to a mechanic. While so employed he picked up a hammer in use by one Mr. Smith, under whom he was working, and undertook to pound down a seam in a piece of galvanized iron piping. A chip from the hammer flew, struck him in one of his eyes, and resulted in the loss of the sight of the eye. The plaintiff testified that the had never used this hammer before, and that he was not acquainted with, and had no knowledge of, the temper of tools. The testimony shows that the hammer belonged to Mr. Smith; that it was purchased by him of a reputable firm; and the testimony was in conflict as to whether the hammer had previously chipped, or whether the face was smooth at the time plaintiff undertook to use it. Smith testified that he had no recollection of instructing the defendant to use the hammer; that it was not his practice to direct a helper to do anything of that kind. Under the instructions given by the circuit judge, hereinafter referred to, the jury rendered a verdict for the defendant. The plaintiff brings error.

Error is assigned upon the refusal of the court to permit the following question, put to the plaintiff: 'State what Mr Smith said to you about this hammer or about the work?' By the previous course of the examination it is made to appear that this question related to the time immediately after the plaintiff received his injury, and it is contended that this was a part of the res gestae. We think there was no error in excluding this testimony. The injury had already occurred. It became a matter of narration, and was not even narration of the incident, but of the cause which led to the incident. We think the question was within the ruling of this court in Andrews v. Mining Co., 114 Mich. 375, 72 N.W. 242; Railroad Co. v. Coleman, 28 Mich. 440.

Error is also assigned upon the exclusion of a question put to the witness Smith, who was plaintiff's own witness, which, it is said, was put for the purpose of refreshing his recollection. But the question was more in the nature of a cross-examination of the plaintiff's own witness as to statements made out of court, and the occasion for such an inquiry is not made manifest by the record.

Error is also assigned upon a so-called hypothetical question, said to have been...