Kingston v. Ft. Wayne & E. Ry. Co.
| Decision Date | 10 March 1897 |
| Citation | 70 N.W. 315,112 Mich. 40 |
| Parties | KINGSTON v. FT. WAYNE & E. RY. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Wayne county; William H. Simpson, Judge.
Action by Thomas Kingston against the Ft. Wayne & Elmwood Railway Company for personal injuries. Judgment for defendant, and plaintiff brings error. Reversed.
Moore & Moore, for appellant.
Conely & Taylor, for appellee.
The defendant, on October 10, 1891, owned and operated a horse railway in the city of Detroit. The plaintiff went upon one of its cars on that date, for the purpose of being transported as a passenger. It was what was called a "summer car," open on both sides, with a step or running board, consisting of one board, extending the length of the car. The plaintiff, being unable to secure a seat stood on the running board, and claims that the conductor in charge of the car negligently pushed him off, causing the injury complained of. The defendant claims that the plaintiff was intoxicated, and either jumped or fell off. On the trial before a jury, the defendant had verdict in its favor. Plaintiff claims that he was not intoxicated at the time of the injury, and, even if he were, he had a right to ride standing on the running board, and that if he was guilty of no neglect, and was pushed off the car by the negligent conduct of the conductor, he was entitled to recover. Complaint is made of the admission of certain evidence, and of the refusal of the court to charge certain requests, and also to some portions of the charge as given.
It appeared upon the trial that the plaintiff had worked for the Union Elevator Company in Detroit for seven years continuously, and that he had severed his connection with that company between two and three years before the injury. The foreman of the elevator company was called as a witness by the defendant, and was asked why the plaintiff was discharged by that company, and, under objection, was permitted to testify that it was because of his intemperance. The superintendent of the elevator company was called as a witness by the defendant, and was permitted to testify, under objection, that the reputation of the plaintiff among the people in and about the elevator was that he was a drinking man. The defendant also was permitted to show that the plaintiff was under the influence of liquor at different times a year prior to the accident. One of the police officers was called, and permitted to testify that he knew the plaintiff when he kept a saloon; that at one time there was trouble at the saloon, and he went in and found the plaintiff and others pretty well intoxicated. Another police officer was called, and testified that in 1891 he had seen the plaintiff under the influence of liquor. He was then asked, "Did you know what sort of a place he had?" and answered that he considered it rather tough. This testimony was objected to by counsel for the plaintiff. Counsel for defendant insists that this testimony was competent when the plaintiff's story and demand are taken into consideration; that his story was that the conductor treated him in a negligent manner, whereby he was caused to fall from the running board of the car; that he did not do anything in whole or in part to cause the accident; and that he was entitled to recover from the defendant, not only for the direct physical injury he received, but also for the pain and suffering, loss of time, and for loss of work which he would have received had he not been injured; that the plaintiff was called as a witness on his own behalf, and therefore put himself in the way of an attack, not only upon his honesty as a party claimant, but also upon his credibility as a witness, both generally and in respect of his version of the occurrence resulting in his injury. Counsel contends, further, that the plaintiff's own counsel put his sobriety in issue and that defendant's counsel went into the matter on cross-examination.
We think it was proper examination to make inquiry as to the plaintiff's condition at the time of the injury complained of, and that the question was open to defendant's inquiry as to whether the plaintiff was or was not intoxicated at the time of the injury, and that the defendant had a right to call witnesses to show that the plaintiff was intoxicated at that time. The defendant's conductor denied that he pushed the plaintiff off, or was in any way instrumental in his falling off the car. The defendant claimed that the plaintiff fell...
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