Harris v. Detroit City R. Co.

• Decision Date: 11 July 1889
• Court: Michigan Supreme Court
• Parties: HARRIS v. DETROIT CITY RY. CO.

42 N.W. 1111

76 Mich. 227

HARRIS v. DETROIT CITY RY. CO.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Wayne county; GARTNER, Judge.

CHAMPLIN J.

Plaintiff recovered a judgment in the court below for damages occasioned by the negligence of defendant in starting its street-car while plaintiff was in the act of alighting, by which she was thrown to the ground and injured. After her injury she was conducted to the house of Margaret Dwyer, who testified that "there was a lump raising on her wrist." She was then asked: "Did she make any exclamations of pain?" and "State what her exclamations of pain were." Both questions were objected to as incompetent and irrelevant; not being part of the res gest�. The objections were rightly overruled. 1 Greenl. Ev. � 102; Johnson v. McKee, 27 Mich. 471; Elliott v. Van Buren, 33 Mich. 52; Mayo v Wright, 63 Mich. 40, 29 N.W. 832; 5 Amer. & Eng. Cyclop. Law, 361.

Witnesses for the plaintiff were asked the following questions "Describe her situation as you saw her there." This referred to the day after the alleged injury. "From what you have seen, laying aside altogether what she has said to you, can you form a judgment whether she has had the full use of her arm?" "Can you state whether she has been able to work during this time?" "Now, from what you have seen of her, can you state whether she has the full use of her left arm?" The questions were permitted, against defendant's objections to be put to witnesses who were not physicians or surgeons. These questions did not call for opinions, but for facts which fell under the observation of the witnesses, and were proper, under the rule laid down in Elliott v. Van Buren, 33 Mich. 53.

Error is assigned upon certain remarks made by counsel for plaintiff in his closing argument to the jury; but we do not think they were of sufficient gravity to call for a reversal of the judgment. It appeared from the cross-examination of defendant's witness that one Pigeon was the conductor of the car at the time of the alleged accident,-the capacity of conductor and driver being united in the same person,-and that the whereabouts of Pigeon was unknown to the defendant. It also appeared from such cross-examination that it was the practice of defendant company to take the statement of its servants and employ�s respecting any accident that occurred upon its lines of railway, and that they had taken Pigeon's statement, although not signed by him respecting the occurrence involved in this suit. Its production was not requested by plaintiff's counsel, and it was not in evidence. During the...