Gold v. Detroit United Ry.

• Decision Date: 04 June 1923
• Docket Number: No. 49.,49.
• Citation: 193 N.W. 775,223 Mich. 209
• Parties: GOLD v. DETROIT UNITED RY. et al.
• Court: Michigan Supreme Court

223 Mich. 209

193 N.W. 775

GOLD

v.DETROIT UNITED RY. et al.

No. 49.

Supreme Court of Michigan.

June 4, 1923.

Error to Circuit Court, Wayne County; Frank L. Covert, Acting Judge.

Action by Simon Gold against the Detroit United Railway Company and another. From a judgment for defendants, plaintiff brings error. Reversed, and new trial granted.

Argued before FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Charles A. Lorenzo, of Detroit (Walter M. Meek, of Detroit, of counsel), for appellant.

William G. Fitzpatrick, of Highland Park (William E. Tarsney, of Detroit, of counsel), for appellees.

FELLOWS, J.

Plaintiff receive serious injuries in the collision of a junk wagon he was driving with an interurban car of the Detroit United Railway on Gratiot avenue at Sterritt avenue in the city of Detroit. He brings this action to recover for such injuries and for damages to his horse and rig. There was testimony taking the question of defendant's negligence and plaintiff's contributory negligence to the jury. There was also testimony taking the question of discovered negligence to the jury. The case was submitted to the jury resulting in a verdict for the defendant. The charge fairly instructed the jury upon the questions of negligence of defendant, contributory negligence of the plaintiff, gave plaintiff's request on the subject of discovered negligence and correctly told the jury that the doctrine of comparative negligence did not obtain in this state. One of plaintiff's requests was not given in the language of counsel, but was covered, we think, in the charge as given. It was not error for the trial judge to, on more than one occasion, correctly instruct the jury on the subject of contributory negligence.

After the jury had deliberated for some time, they returned to the court in the absence of plaintiff's counsel and submitted to the court the following question:

‘If the two parties involved are found negligent, could the defendant be found for damages? Foreman.’

The stenographer then read to the jury the instruction of the court on the question of comparative negligence as follows:

‘Another thing I want to speak to you about is sometimes called ‘comparative negligence.’ It might be that some of the jurors might arrive at the conclusion that both parties were guilty of negligence, but the railway company was guilty of greater negligence. There is no such rule of law as that. The rule is as I have already stated to you: There must be negligence on the part of the defendant company, which is the proximate cause of the injury, and there must be no contributory negligence on the part of the plaintiff.'

The jury, being...