Hughes v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 28 December 1889
• Citation: 78 Mich. 399,44 N.W. 396
• Parties: HUGHES v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

44 N.W. 396

78 Mich. 399

HUGHES v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

December 28, 1889

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

Action for personal injuries by James Hughes, by his next friend Seth E. Engle, against the Detroit, Grand Haven & Milwaukee Railway Company. Plaintiff recovered a verdict and judgment for $8,750, and defendant brings error.

George Jerome, (Otto Kirchner of counsel,) for appellant.

Seth E. Engle, (Levi T. Griffin, of counsel,) for appellee.

MORSE, J.

This case has been in this court once before, and is reported in 65 Mich. 10, 31 N.W. 603. The usual questions as to the negligence of plaintiff and defendant in cases of this kind are not found in this record The defense objects to the charge of the court, contending that a different case was submitted to the jury than that alleged by the plaintiff in his declaration; also that it was inconsistent and misleading, but in what respect is not very clearly pointed out. No fault is found in the admission or rejection of testimony on the trial, nor is any of the evidence given in the record. We are asked to deal with supposed erroneous conduct of the attorneys for plaintiff sanctioned by the trial court, and also with alleged error in the proceeding attending the reception of the verdict of the jury. It is also claimed that the declaration does not state a cause of action. We think that the objection to the declaration is a very technical one, and has no merit. The counsel for defendant contends, first, that this court held when the case was here before, and that the circuit court upon the last trial submitted the case upon that theory, that the plaintiff could not recover unless the jury found that he was standing upon the foot-board of the engine, and the engineer saw him there when he started the engine, and did not previously give him an opportunity to get off, and that the declaration has no allegation to this effect, but proceeds upon the theory that the engineer and other agents of the defendant did not see plaintiff on the foot-board of the engine, whereas, if they had used reasonable care, they would have seen him there, and that their failure to thus see him was negligence. Since the case was here before, there have been two trials, under an amended declaration, which the defendant's counsel admits attempted to allege that the engineer saw the boy upon the foot-board at the time of starting the engine; but he claims that the attempt was a failure, or, if the amendment can be construed to mean what it was intended to mean, it is so inconsistent with other portions of the declaration that it cannot stand. It seems therefore, that the declaration has misled no one; the counsel for the defendant being aware what was meant and intended by the amendment and the counsel for the plaintiff supposing all the time, and still insisting, that he stated in such amendment clearly enough what he intended to say. The record also fails to show that any question has ever been raised upon the sufficiency of this declaration in the court below, although it was amended soon after it was first in this court, and there have been two trials since such amendment. The declaration avers, among other things, "that it was the duty of the defendant and its said agents to see the said plaintiff when going and being on the premises aforesaid, and to warn him of the danger, and to order him off, and to compel him to go off;" and avers that, by the exercise of ordinary care and diligence, they could have seen him when going and being on and about said premises and engines, and that he was in plain sight of them all; " and that they, the said engineer and other servants of defendant, did see the plaintiff while standing on the end of the step, at the time of and immediately before starting the engine as aforesaid, and saw him on defendant's premises during the whole time he was there as aforesaid preceding the injury, to-wit, about six or eight minutes, and that it was their duty not to start the engine while he was standing on said step, or to so manage or so check the engine, and then immediately propel it forward as aforesaid, without looking to the front of it, and without ordering the plaintiff off, and allowing him to get off, but that said defendant, by the wrongful conduct, carelessness, and negligence of its said servants, took no notice whatever of the plaintiff's presence, and gave him no notice whatever of any danger, or to leave said premises, or to get off from said engine, but did wrongfully, negligently, and carelessly allow said plaintiff to go and be on said premises, and to ride upon the platform aforesaid, and to be thrown therefrom, and injured as aforesaid." The portion in italics constitutes the amendment. If this does not clearly enough charge that the engineer saw the boy standing on the end of the step (front-board) at the time of the starting of the engine, then I fail to understand the meaning of plain Anglo-Sax on words; nor do I find any inconsistency between this amendment and the balance of the declaration.

In relation to the objections made to the opening of the counsel for plaintiff the counsel for defendant claims that, when the case was here before, it was reversed, among other things, on the ground that evidence was received "covering the condition of the yard in which the accident happened, and the use of it as a place of pastime by children, and some similar matters;" and that it was held that the error of the court in receiving the testimony was not cured by its being afterwards ruled out and withdrawn from the consideration of the jury. In this the learned counsel is mistaken. This court did not reverse the case on this ground, or hold as claimed by counsel. The only reference to this matter in the majority opinion by Chief Justice CAMPBELL is when, in speaking of the allegations in the declaration, he says: "Other facts were set up concerning the condition of the yard in which the accident happened, which ran from Hastings street across a block, and the use of it as a place of pastime by children, and some similar matters, all of which, although gone into on the trial, were finally ruled to be improper by the judge in his charge. This final ruling was in accordance with the decision of this court in Railway Co. v. Smith, 46 Mich. 504, 9 N.W. 830, concerning such premises, where it was held, in a very similar case in all its circumstances, that the company could not be held, under such circumstances, for anything less than wanton and gross negligence, involving reckless misconduct." The opening of plaintiff's counsel complained of is as follows: Mr. Engle stated that the injury for which recovery was sought happened in the railroad yard of the defendant at Detroit, and then proceeded to further state as follows: "Along this back-yard and at the rear of their dwellings [meaning the dwelling of plaintiff's family, which was located at the point immediately adjacent to said yard] there were no fences whatever." Thereupon defendant's counsel interrupted, and stated that he objected to the statement as immaterial and irrelevant. Plaintiff's counsel then further proceeded; "It cannot be objected to. We may describe the locality; we have a right to describe the locality of the premises. There was nothing to obstruct the view from where these witnesses were, down to and over the railroad grounds. We shall show that the little boy had seen children ride on that step, and on this occasion he tried it." And thereupon the defendant's counsel further objected to the statement as irrelevant. And thereupon the court said: "As far as that is concerned, I do not see how I can limit counsel in his opening. I cannot anticipate what he is going to say;" to which remark of the court the defendant took an exception. And thereupon the plaintiff's counsel further stated: "We propose to offer to prove upon what grounds we claim." Thereupon the court stated: "You can go on and take your own chances on the opening;" to which ruling of the court the defendant excepted. And thereupon, subject to the objection and exception of the defendant's counsel, the plaintiff's counsel did continue his opening address to the jury, as follows: "Our claim for damages in this case, in the first place, was $10,000. This case was tried, and went to the supreme court, and came back here for a new trial. We applied to this court, having known more about the case and understood its aspects-we applied to this court to allow us to amend our ad damnum clause in the declaration, to claim $20,000 instead of $10,000. Upon the hearing before the court, that application was allowed, and our claim in our declaration for this injury is now $20,000. I may state to you gentlemen of the jury, that there are two or three other grounds of negligence upon which we claim, but I anticipate they may be excluded from you. We claim it was negligence in not fencing those grounds. We claim it was negligence in allowing children to make a play-ground of the track, and that it was a temptation to other children, and that they should have kept the plaintiff off the premises; and that there was a row of houses along there, and they should have kept the grounds fenced. The very building in which the family lived was owned by the railroad company. I believe the title to the property was in the name of one of its officers, but held for the benefit of the company. These matters may be excluded from your consideration. If they are, why, of course, you will not be troubled with them."

It is contended that plaintiff's counsel stated that he intended to prove these matters, when he knew that this court had ruled them out, for the express purpose of prejudicing the jury. The...