Michigan C. R. Co. v. Anderson

• Decision Date: 26 April 1870
• Court: Michigan Supreme Court
• Parties: The Michigan Central Railroad Company v. Eli B. Anderson

20 Mich. 244

The Michigan Central Railroad Company v. Eli B. Anderson

Supreme Court of Michigan

April 26, 1870

Heard April 15, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kalamazoo Circuit.

This was an action on the case brought by Eli B. Anderson, in the Circuit Court for the County of Kalamazoo, against the Michigan Central Railroad Company, for the value of a building, and property therein stored and adjacent, consumed by fire on the night of the 20th of April, A. D. 1866; Anderson claiming that the fire was communicated from sparks and cinders flying from engines passing over the track of the railroad company, and was the result of carelessness and negligence on the part of the agents of the company.

On the trial of the cause, Thompson, a witness who had been examined on behalf of the company, was recalled by defendants, who proposed to show by his testimony, that when he was on the stand on his direct examination, he did not testify as the plaintiff's counsel had by their rebutting testimony in the case, assumed; and that if he was so understood to testify, it was a misapprehension, as witness did not intend so to testify, nor wish to be so understood as testifying.

To which proposition the counsel for the plaintiff objected, for the reason that it was not a proposition to allow the witness to correct his testimony, but a proposition merely to allow the witness to go upon the stand and say that what he did testify to was different from what he was understood to testify to. The objection was sustained by the Court, and the defendant excepted.

The witness also requested that he might be permitted to explain his testimony and what he testified, or intended to testify to when on the stand, which request was objected to by the counsel for the plaintiff for the same reasons as urged in support of objection to the preceding proposition. The objection was sustained by the Court, and the defendant excepted.

In submitting the cause to the jury, the Circuit Judge, on the request of the plaintiff, charged:

"3. That in applying the rules of the law in this case, regard must be had to the actual state of things at the time; the force and direction of the wind, the dryness of the weather, and the proximity of the building to the railroad; and that what might be ordinary care on a still and wet day might not be in a windy and dry one, and when near to combustible matter. The question still being what care a prudent man would exercise in precisely similar circumstances.

"4. That if the jury find that the plaintiff's building was set on fire by sparks from defendant's engine, such fact is prima facia evidence of negligence on the part of defendant, provided the sparks were continuously emitted, were of an unusual quantity and size, impossible but for displaced preventives or negligence in using the engine and fixtures.

"8. That the lawful use of property in an exposed and hazardous position in an ordinary manner, and for the purposes for which such property is designated, would not be negligence on the part of the plaintiff; provided such property could be so used safely by taking the ordinary care of a prudent man."

To each of which paragraphs of the charge of the Court, as requested by the counsel for the said plaintiff, and as above numbered 3, 4 and 8, the counsel for the defendant excepted. The jury, under the charge of the Court, found a verdict for the plaintiff for the sum of five hundred and thirty-five dollars. The judgment entered thereon is brought into this Court by writ of error.

Judgment reversed.

Stuart & Edwards and G. V. N. Lothrop, for plaintiff in error.

1. It is always the right of a party to sustain his witness whose credibility is assailed; more, it is his duty, when producing a witness and his sworn statements in support of his case, jealously to guard his reputation for veracity from unfounded aspersion.

a. The plaintiff below offered the testimony of several witnesses as rebutting; the point to which they were examined, was, that on the railroad track at the Knight place the fire at Anderson's could not be seen. Offered as rebutting testimony, it assumes that the point which it rebuts, to wit: that Thompson could and did see the fire from that point, had been testified to by Thompson.

The point involved in the assumed contradiction of Thompson's testimony is material; he testifies that he first saw the fire before his train reached it, which, if true, discharges the defendant's liability, but if he makes the point of discovery an impossible one, as these rebutting witnesses testify, the credibility of his whole statement is affected.

b. The proposition then to recall the witness Thompson, and to show by him that what he did testify to, was misunderstood and misrepresented; and showing further what his testimony was when on the stand, was no more nor less than a proposition to sustain Thompson's credibility against the attacks made upon it. The re-examination of the witness Thompson, was the right of the defendant and the ruling of the Court thereon was not an exercise of discretion.

The decision of the Court denying the right of the defendant below to re-examine the witness, as proposed, was erroneous.

II. The witness himself has the right to the protection of the Court from unjust attacks upon his reputation or credibility. The mandate of the Court places him upon the stand as a witness. What he does not say, he cannot be assumed to have said upon the stand, as the foundation for an impeachment, and it is the witness's privilege to be allowed, when so misunderstood or misinterpreted, to explain or correct misstatements. The witness can claim his privileges as of right, an it is the duty of the Court to grant him a hearing. See as to right of a witness in vindication of his credit, reasoning of Justice Best, quoted 1st vol. Phillips ed., p. 306; Clark v. Vorce, 15 Wend. 193.

III. The charge of the Court, as in paragraph number 3 of the charge, as requested by plaintiff below, and which is assigned as error, was clearly erroneous, inasmuch as it assumes as possible, and as a duty, what in the nature of the case is impossible, i. e., that the defendant in the running of its engines and trains over its track, can at its will and pleasure, avoid or limit the accidental hazards which spring from wind and weather, and should be held liable for the chance injuries or damages thereby inflicted.

This is not, as we understand it, the law or rule of liability of railroad companies for injuries resulting from moving trains.

a. It cannot be said that because the wind is in a particular direction and brisk, and the weather dry that trains should stop running in subordination to the elements. Such a rule would be the destruction of railroads. And yet the charge of the Court would fairly imply such necessity, when to guard from the increased risk from such supposed conditions of wind and weather, any change of course or direction is impossible.

b. The rule as laid down in such charge as applied to a steam vessel on water might be correct, and for the very obvious reason that the vessel's course is under the direction of the master, and is not restricted as on a railroad track to an undeviating line. The vessel's progress may be either restrained or stopped, without, for that reason incurring the hazard of collision with other vessels. Cook v. The Champlain Transportation Co., 1 Denio 91.

The Court below, in its charge, seems to have adopted the rule in the case cited, as the rule in this case. The case cited was a case of damages from burning of plaintiff's mill, situated a few feet from a basin on Lake Champlain, from sparks from defendant's steam vessel passing in the basin. The Court in the case cited, in the same connection further charged, what in this case the Court omitted, as follows: "That the jury were to pass upon those questions, and to determine whether the defendant's agents adopted the ordinary precautions, such as are usual in similar cases to prevent injuries."

c. In the case of Fero v. The Buffalo and State Line Railroad Company, 22 N. Y., 209, the Court establishes the rule as applied to the facts of that case. It was the case of an engine stopping, and for the time stationary upon its track in a village, and near to combustible wooden buildings, towards which a brisk wind impelled sparks from the engine. The Court held the defendant liable for the damages on the ground of the want of proper care.

In this case the running of the train compelled the approach, not to be avoided, near to the building burned, of the engine in passing upon its line of track; and the degree of care to be exercised must be limited and controlled by the change of circumstances between the cases.

d. The charge of the Court now being considered is qualified as follows: "The question still being what care a prudent man would exercise in precisely similar circumstances." This qualification conveys no meaning which would lead the jury properly to construe what precedes it.

The qualification that the decree of care should be such as a prudent man would exercise in precisely similar circumstances, would tend to confuse rather than enlighten the jury, and as a definition of the degree of care to be exercised, it is fairly and justly commented on in Kelsey v. Barney, 2 Kernan 425.

IV. There was error in the charge of the Court, that if the jury find...