Joslin v. Grand Rapids Ice & Coal Co.

• Decision Date: 16 April 1884
• Citation: 19 N.W. 17,53 Mich. 322
• Parties: JOSLIN v. GRAND RAPIDS ICE & COAL CO.
• Court: Michigan Supreme Court

19 N.W. 17

53 Mich. 322

JOSLIN v. GRAND RAPIDS ICE & COAL CO.

Supreme Court of Michigan

April 16, 1884

Even though a collision between two wheeled vehicles is caused by the improper construction of a street-railroad track in the street where both are being driven, yet, if the driver of one of the vehicles might, by the exercise of ordinary care, have avoided the accident, he is guilty of negligence, and he or his master is liable.

It is not error to tell the jury, after charging them that negligence is a question of fact to be determined by applying to the facts the instructions received from the court, that they "will receive little aid from the court in this line."

The words and the manner of the driver immediately after the accident are a part of the res gestae and may be testified to.

COOLEY C.J., dissenting with reference to the driver's manner.

A physician may be asked his opinion of the nature of the injured person's malady from the examination made by him at the time, and supposing certain symptoms to exist.

Defendant's witness, upon cross-examination by plaintiff's counsel may be asked what the plaintiff said with reference to his symptoms, in answer to questions put to him by witness during a medical examination.

Error to Kent.

Taggart & Earle, for plaintiffs.

SHERWOOD J.

This case has once before been in this court. See 50 Mich. 516; S.C. 15 N.W. 887. The question before the court then was: (1) Was the defendant liable, if at all, for the act of its servant, the driver of the ice-cart: and (2) had the plaintiff the right to recover (he being a lawyer) special damages by reason of the employment in which he was engaged without special allegation in the declaration averring the facts. On the first point the court held the liability existed, and on the second it held the negative, and reversed the judgment, which was for the plaintiff, and directed a new trial. On the second trial the plaintiff was allowed to amend his declaration, alleging his professional character, and claim damages especially sustained in his professional business. The trial then proceeded before a jury, and the plaintiff again had judgment at the circuit, and the defendant again brings the cause here on exceptions.

The plaintiff claims that on the third day of April, 1882, he was driving on a public street in the city with his horse and buggy, and was carelessly and negligently run into by one of defendant's servants, who was driving a team before an ice-cart while in the employ of the defendant; that by the collision his horse and buggy were damaged, and himself severely injured, in consequence of which he has been prevented from carrying on his business, and especially that of his profession, and this suit is brought to recover the damages he has sustained.

The questions now raised arise upon the rulings and charges made by the court during the trial of the case. Two of the assignments of error relate to the refusal to charge as requested by defendant's counsel, and one to a statement of the court made in the charge upon his own motion. The first includes the defendant's sixth request, which was given in full, and is as follows: "(6) If the jury find that the street-railway track, at the point where the collision occurred, was not in suitable and proper condition to allow the wheels of vehicles to pass over it, and that the collision was caused by this condition of the track, and would not have occurred but for that, then the plaintiff cannot recover." The court then said, in connection therewith: "If, however, the servant was negligent in driving against the plaintiff's vehicle, or in driving where the contact of his wheels with the railway track would throw his wagon against the plaintiff's carriage, and could, by the exercise of ordinary care in driving in the highway as it then was, have avoided the collision, he was guilty of negligence. In other words, the fact that the street railway may have been in a condition which made it difficult to cross, would not justify one driving in the street to attempt to cross such track recklessly, or to the peril of others lawfully traveling the street, or charge any injurious result to the condition of the street." It is to this additional instruction the defendant excepted, but we fail to see why the statement of the law therein contained is not correct, as applied to the facts the testimony discloses.

The court in his charge to the jury, after telling them that, in order to find for the plaintiff, they must find the driver of the ice-cart was guilty of negligence, said: "As to whether there was negligence, is a question of fact for you to determine from the evidence. In the determination of this question you will apply the instructions you receive from the court to the facts; but you will receive little aid from the court in this line." The last sentence in this charge is the one excepted to. It seems, however, quite clear to us that the jury were not misled, as claimed by the defendant's counsel. The sentence immediately relates to the deliberation of the jury upon the facts, and in this, he says, he can render them little assistance. We see no objection to this charge.

The plaintiff, when upon the stand as a witness, against the defendant's objection, testified that when the accident occurred, and while he was trying to raise himself up out of the debris, he asked the driver of the cart what he meant and then stated, "The driver replied in rather an indifferent and insolent manner that he could not...