McClellan v. Ft. Wayne & B. I. R. Co.

• Decision Date: 26 April 1895
• Parties: MCCLELLAN v. FT. WAYNE & B. I. RY. CO.
• Court: Michigan Supreme Court

62 N.W. 1025

105 Mich. 101

MCCLELLAN v. FT. WAYNE & B. I. RY. CO.

Supreme Court of Michigan

April 26, 1895

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Margaret McClellan, administratrix of the estate of Daniel H. McClellan, deceased, against the Ft. Wayne & Belle Isle Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Hooker and Grant, JJ., dissenting.

Edwin F. Conely and Orla B. Taylor, for appellant.

Alfred Lucking, for appellee.

MONTGOMERY J.

Decedent and a young man named Delling were traveling along Champlain street, in Detroit, riding on a two-wheeled road cart, drawn by a colt three years old, leading another horse. They stopped in front of a residence on Champlain street, and decedent went into the house while Delling remained in the cart. The street at this place is 25 feet in width, and the distance from the south curb to the south rail of the street-car track is 10 feet and 1 inch. While McClellan was on the porch of the house, Delling called to him that a car was coming. He ran out to where Delling was with the horses and cart, and the testimony offered on behalf of the plaintiff tended to show that he went directly to the horse which was being led, and seized hold of the halter shank. The colt became frightened by the noise of the approaching car and the sounding gong, began prancing about, and wheeled upon the track. Delling sawed upon the bit, and tried to back and guide the colt from the track, but did not succeed in doing so. The deceased thereupon ran to the head of the colt, and tried to lead him off the track, but without success. Deceased then proceeded to shove the colt from the track, and while engaged in doing so was struck by the car, and received injuries resulting in his death. The defendant's testimony tended to show that the colt remained quiet until the car was within eight or ten feet and then suddenly took one step to the track, and that McClellan at that instant stepped in front of the car, and was struck. The young man Delling, however, testifies that the car was still 100 to 125 feet distant after McClellan had gone to the head of the colt, and Miss Williams, a witness for the defendant, testified that she saw the deceased at the head of the colt when the car was 20 to 25 feet away. This was the first she saw of the parties.

It is contended by the defendant that the evidence failed to show negligence on the part of the company, and that negligence on the part of decedent did appear. We think there was sufficient testimony from which the jury might have inferred that the situation was apparent to the motorman, and that it was his duty to bring the car under control, and that he had ample opportunity to do so after discovering the peril to decedent. We also think that the question of whether the decedent was guilty of contributory negligence was for the jury. See Laethem v. Railway Co. (Mich.) 58 N.W. 996; Montgomery v. Railway Co. (Mich.) 61 N.W. 543.

Exception was also taken to the refusal of the court to strike out the testimony of what appeared by a post mortem examination of deceased. This testimony was received by the court as one of the means of ascertaining what the result of the injury was, and for this purpose we think was competent. George H. Fuller, conductor of the car which inflicted the injury, and who testified to a state of facts tending to show the exercise of care on the part of the motorman, was asked on cross-examination if he had not stated, shortly after the accident, to one Mr. Therwachter, that the accident would not have happened if he had had his own motorman. He denied having made such statement. In rebuttal, Therwachter was called, and permitted to testify that such statement was made to him by the witness Fuller. Error is assigned upon this ruling. Counsel contend that, at most, it would be an expression of opinion by the witness as to what was the cause of the collision. While this is in a sense true, it tended to show an admission on his part that the inexperience or want of care of the motorman was the cause of the collision, which, if true, would be inconsistent with his testimony given in chief. We are cited to no authority to sustain the position of defendant's counsel. A very similar question arose in Beaubien v. Cicotte, 12 Mich. 459, in which case one Dr. Smith had testified on his direct examination to the valid execution of a will and the capacity of the testator. He was asked whether he had not on a certain occasion declared that if the family should follow it up they would break the will, for it was not worth a snap of his fingers. This he denied, and testimony was admitted to show that he had made such statement. The court, speaking by Mr. Justice Campbell, said: "We think the contradiction comes properly within the rule of impeachment. When a witness testifies on the stand that a paper was duly executed by a competent testator, his statement on another occasion that the instrument was worthless is a clear contradiction, on the very essence of the issue. *** It was in the witness' power, if he saw fit, admitting the conversation, to explain that it was a mere matter of opinion, and based upon the facts sworn to on the trial." See, also, Patchin v. Insurance Co., 13 N.Y. 268. I think there was no error to the prejudice of the defendant, and that the judgment should be affirmed.

McGRATH, C.J., and LONG, J., concurred with MONTGOMERY, J.

HOOKER J. (dissenting).

The plaintiff's intestate and a boy drove in a cart, drawn by a colt, to the residence of a relative of the intestate upon Champlain street, in the city of Detroit. They led a horse behind the cart. Champlain street was ten feet and one inch wide between the curb and the street railway. Mr. McClellan, the deceased, was called by the boy (who sat in the cart), and ran from the house, where he had called, into the street, to assist the lad to manage the horses, which were restive from the approach of the street car. While thus engaged he was struck and injured by defendant's car, and he subsequently died. From a verdict and judgment for the plaintiff, the...