Lonis v. Lake Shore & M.S.R. Co.

• Decision Date: 05 January 1897
• Citation: 111 Mich. 458,69 N.W. 642
• Parties: LONIS v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

69 N.W. 642

111 Mich. 458

LONIS v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

January 5, 1897

Error to circuit court, Lenawee county; Victor H. Lane, Judge.

Action by Minor Lonis against the Lake Shore & Michigan Southern Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

C. E Weaver (Geo. C. Greene and O. G. Getzen-Danner, of counsel) for appellant.

Watts Bean & Smith, for appellee.

GRANT J.

This case is the companion of McDuffie v. Railway Co., 98 Mich. 356, 57 N.W. 248.

McDuffie was driving, and Lonis was riding in the same wagon with him. The issue in this case is the same as in the other, and the testimony the same, except some discrepancies between the testimony of Lonis and McDuffie upon this trial and that given in the other case. All the propositions, except one now urged by the learned counsel for the defendant, are substantially the same as were urged in that case. That decision is the law of this case, unless the defendant has now established facts which were not established in the former case. Just after the accident, both McDuffie and Lonis made written statements to the agents of the defendant detailing how the accident occurred. Those statements differed from their testimony given upon the trial. It was held in that case that this conflict was not so great as to justify the court in directing a verdict for the defendant on the ground of contributory negligence. We find no such conflict in the three versions of the accident as to justify the court in saying that either McDuffie or Lonis was barred of recovery on account of this conflict. The jury, under proper instructions, were left to determine what credence they would give to the testimony of these parties.

One question which was not raised upon the McDuffie trial is now raised. The following request was preferred and refused "The jury is instructed that, as to the question of the giving of the signals,-as to whether or not the whistle was blown and the bell rung,-the difference between the positive and negative testimony is very marked, and the positive testimony of witnesses who had opportunity to know that the signals were given should outweigh the testimony of witnesses who did not hear it, unless in some manner their attention had been called to it." Five witnesses for the plaintiff swear positively that the signals were not given, and give their reasons why they so...