McGrail v. City of Kalamazoo
| Decision Date | 22 December 1892 |
| Citation | 94 Mich. 52,53 N.W. 955 |
| Court | Michigan Supreme Court |
| Parties | McGRAIL v. CITY OF KALAMAZOO. |
Error to circuit court, Kalamazoo county; GEORGE M. BUCK, Judge.
Action for damages by Catherine McGrail against the city of Kalamazoo for personal injuries received by a fall upon a defective sidewalk. From a verdict and judgment for defendant, plaintiff appeals. Affirmed.
Howard & Roos, for appellant.
Edwin M. Irish, for appellee.
This suit was brought to recover for injuries received by plaintiff by falling upon an alleged defective sidewalk on May 10, 1890. It was contended by plaintiff that the sidewalk, at the place in question, was on that day, and had been for a long time prior thereto, in a dangerous and unsafe condition. Her testimony showed that she was a large, fleshy woman, and while passing over the sidewalk, in company with two other ladies, owing to the defective condition of the walk, some of the planks therein being loose, she was tripped up and thrown violently to the ground, and received serious injuries, which are claimed to be of a permanent character. Under a very full charge of the court, the jury returned a verdict against the plaintiff. The errors relied upon relate (1) to the ruling of the court in sustaining the challenge for cause to two of the jurors, for the reason that they were over 60 years of age; (2) to the ruling of the court in refusing to allow certain testimony to be given, and in the reception of certain testimony; (3) in not permitting the plaintiff to put in evidence a certain stringer which it is claimed was taken from under the sidewalk in question; (4) to the refusal to give certain of plaintiff's requests to charge, and to certain parts of the charge as given.
It appears that two of the jurors were over 60 years of age. They were both on the regular panel for the term. They were challenged by defendant's counsel on account of their age, and the court excused them. It is insisted that this was error, and that this claim is within the ruling of this court in People v. Rawn, (Mich.) 51 N.W. 522.
In that case it was held that, though a juror was beyond the age of 60 years, he was not subject to challenge for cause but that the exemption under the statute from service upon juries when beyond that age was only a personal privilege to the juror. Error was assigned upon the ruling of the court in refusing to set the juror aside, upon a challenge for cause upon the ground of his being beyond the age of 60 years. It was held not to be error, and the conviction was affirmed. The question is not presented in this case in that form. Here the court sustained the challenge, and discharged the jurors from the panel. It appears those persons were on the regular panel and under section 7555, How. St., requiring the officers who make return of persons for jurors to the county clerk to select the names from the assessment roll, and, "in making such selection, they shall take the names of such only as are not exempt from serving on juries," and section 7571, expressly exempting persons over 60 years of age from serving as jurors, it is claimed the plaintiff had no legal right to have these jurors on the panel to try the case, and their discharge by the court is no ground of error. We think counsel right in this contention. These jurors had a right to be discharged from the panel if they requested it themselves, as the statute expressly gave them the right; and while it would not have been error, as held in People v. Rawn, supra, for the court to refuse to set them aside on that ground when peremptorily challenged, it cannot be said that a party to a cause can claim the right to have persons above the age of 60 sit as jurors in a cause, or, upon their discharge, have a verdict of another jury set aside, with whom he had expressed his satisfaction and gone to trial before. Especially is this true where it is not claimed that at that time the party has not exhausted his peremptory challenges.
It is claimed that the court was in error in striking out the testimony of the witness Mary J. Briggs in regard to a fall she had upon the walk where plaintiff fell. It appeared upon cross-examination that she fell three or four days after the plaintiff received her injuries, and that the court struck out the testimony for that reason. In Lombar v. Village of East Tawas, 86 Mich. 14, 48 N.W. 947, it was permitted to be shown that others had stepped into the same hole prior to plaintiff's injury, for the purpose of showing the existence of the defect at the time the injury occurred; and it was said that such evidence was competent, as it might also tend to show constructive notice of the defect to the village. It was further said in that case that there was some conflict of authority even upon this right. We have been unable to find any case going beyond this ruling, and holding that a plaintiff upon such a trial might introduce proof that others fell or stepped into the hole after the injury occurred, even with a showing that it was in the same condition as when plaintiff was injured. The plaintiff's position here would carry the rule still further, if her counsel's contention is correct. He asked to show that the witness fell on the same defective walk three or four days after plaintiff fell there. How she was walking, or whether using due care, would raise another issue. The injury to plaintiff was not in stepping through a hole in the walk, but in the tipping up of a loose plank; and the question to the witness was not for the purpose of showing that she fell through the same hole that plaintiff fell through, as in the Lombar Case and the cases there cited. The court properly excluded the testimony.
Several witnesses were sworn on the part of the defendant, and testified to having frequently passed over this walk. They were then asked, if there had been a loose plank there, would they have noticed it. This was admitted, under objection of plaintiff's counsel. We think there was no error in...
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