Kelly v. Hendrie

• Decision Date: 23 November 1872
• Citation: 26 Mich. 255
• Court: Michigan Supreme Court
• Parties: James Kelly, Administrator, etc., v. George Hendrie

26 Mich. 255

James Kelly, Administrator, etc., v. George Hendrie

Supreme Court of Michigan

November 23, 1872

Submitted on Briefs October 31, 1872.

Error to Wayne circuit.

Judgment affirmed, with costs.

Van Dyke & Brownson, for plaintiff in error.

J Logan Chipman, for defendant in error.

Graves J. Cooley, J., and Christiancy, Ch. J., concurred. Campbell J. concurred.

OPINION

Graves J.:

This action was brought to recover damages for the benefit of the widow and next of kin of John Mahan, whose death is alleged to have been caused by the negligence and default of the defendant, as lessee of a street railway.

The evidence having been put in, the case was given to the jury with numerous special instructions, but the jury afterwards coming in without having agreed, the first instructions were recalled, and the jury were in substance charged to find for the defendant, and they returned a verdict accordingly. We are now asked to review the first instructions, but this we cannot do. The verdict was not found upon them, and if they were incorrect, they worked no legal prejudice to the plaintiff.

The finding was upon the second charge, which superseded the first, and the only question is, whether the plaintiff has any ground of complaint in consequence of the direction to find against him. If, upon any point essential to a recovery, the evidence bearing on it is open to but one meaning, and that meaning is plainly and necessarily adverse to the plaintiff, then he has no ground of complaint.

The material points controverted on the trial were but two, and the affirmative of the issue as to each, was on the plaintiff. It was incumbent upon him to show that the injurious act of which he complained was caused by the negligence or default of the defendant, and that the deceased did not, by any want of proper care on his part, assist in producing it: Detroit & Milwaukee Railway Co. v. Van Steinburg, 17 Mich. 99.

The whole evidence appears in the bill of exceptions, and whether it has any tendency to show actionable fault on the part of the defendant, we need not consider. For the present purpose, the case may be considered as turning on the other point, and in order to elucidate it, such of the circumstances as bear upon it must be examined.

The deceased, being about sixty-three years of age, and in ordinary health and vigor, so far as shown, about three o'clock in the afternoon of the 27th day of March, 1871, walked upon the railway track, on Woodward avenue, a few feet north of the Congress street crossing, when the car was approaching from the south, and not far distant, and encountered the horses and car, and was killed.

The only witnesses for the plaintiff, who were spectators of the event, were James Burns, Daniel Flynn and Edward J. Warner. Of these the two former were teamsters, engaged in hauling dirt from Moffat's cellar, across the avenue and railway.

Burns states that on going towards the track with his load, he noticed the car approaching from near Jefferson avenue, and as he got near the track he stopped, and looked at the car to see whether he could get across; that he then put on the whip and got across, and had scarcely succeeded when the car passed; that it came quicker than he ever saw it before, and he was excited; that on getting across he stopped and looked after the car, and saw the deceased crossing a little distance from the cross-walk; that when he first saw the deceased the car was a good way from him; that he saw the deceased on the track in front of the car horses; that deceased put his hands up against the horses' heads, and was then thrown between the horses' legs, and then got under the car and across the track, and was dead in a second.

Flynn states that his team was the next following that of Burns, and about thirty or forty feet behind; that he noticed no other team; that he looked up and saw the car coming; that he was on his wagon on the Campbell and Linn side of the track, and saw the deceased in the middle of the track before the horses, and saw the horses strike him, and saw him throw up his hands; that the deceased was then knocked down; that he did not see deceased until his hands were up, and he was working against the horses; that the car ran against the horses and they widened out, and the axle-tree of the car struck deceased.

Warner states that he was on the east side of Woodward avenue and south side of Congress street; that he kept a public dray and had his stand there; that he saw the car coming faster than cars usually go; that he saw deceased when he was about ten feet from the car; that he attempted to cross the street; that he, witness, first noticed that something came in contact with the horses, and then saw something under the horses' feet, but could not at the time tell what it was; that he saw deceased after he got under the horses and after he got under the car.

The witnesses for the defendant, who were spectators of the occurrence, or any part of it, were William Johnson, the conductor, John Patton, the driver, Augustus Thorman, and Mrs. Helen Stewart.

Johnson states that the car, on the trip in question, left the junction of Woodward and Jefferson avenues at three o'clock in the afternoon, and proceeded to the edge of Congress street, where the car stopped to let a dirt wagon pass; and it then started again and proceeded to a...