Mott v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 09 May 1899
• Citation: 79 N.W. 3,120 Mich. 127
• Parties: MOTT v. DETROIT, G. H. & M. RY. CO.
• Court: Michigan Supreme Court

79 N.W. 3

120 Mich. 127

MOTT v. DETROIT, G. H. & M. RY. CO.

Supreme Court of Michigan

May 9, 1899

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by Daniel Mott against the Detroit, Grand Haven & Milwaukee Railway Company. Judgment for plaintiff, and defendant brings error. Reversed. Geer &amp Williams (E. W. Meddaugh, of counsel), for appellant.

Watson & Chapman, for appellee.

GRANT C.J. (after stating the facts).

1. Error is assigned upon the refusal of the court to direct a verdict for the defendant. We think the case was a proper one for the determination of a jury, both as to the negligence of defendant and contributory negligence on the part of the plaintiff. The rules of the corporation provide that "hand cars must not be on the main line during a fog or snowstorm, or at night, except in urgent cases, and then only when ordered by the road master." It was not customary for hand cars to be run at night. It was not, therefore, the duty of the plaintiff to be on the lookout for them. When he had exercised that degree of care required of him in looking out for trains, he had complied with the law. If it be conceded that there was no negligence in running the hand car in the night, common prudence required those in charge to run it over the street at a very moderate rate of speed especially in view of the darkness, and the noise made by the electric lighting plant. We are not prepared to say that it would not be negligence to run it, even at the rate of speed testified to by the witnesses for the defendant, without any warning. The weight of the car, the tools, and the men upon it, was nearly 3,000 pounds. The momentum of such a weight at five miles an hour would demolish any ordinary vehicle. The instructions quoted above were sufficiently favorable to the defendant.

2. One George Jackson was walking on the west side of the avenue, going south. As he reached the track he turned to the east side of the avenue, and then stepped off the track on the sidewalk to the south. As he was walking he neither saw nor heard anything coming on the track from the east. On his direct testimony he said: "I don't think I was ten feet from the hand car when I first saw it. It had not come through the fence. I did not hear it before I saw it. I turned to see whether they would run into these people. I saw it strike the buggy on defendant's track. As I saw one I saw the other, right at the same instant that they struck the buggy." He further testified that he had observed bodies move and in motion a good many times, and had seen horses trot and run. Under objection and exception, he testified that in his judgment the car was going at least 12 or 15 miles an hour. On cross-examination he testified: "I was not to exceed six feet south of the track when I heard a noise just behind me, a little to the left. I turned to the right, and saw the collision. That is all the opportunity I had to see the car. It ran from the east side of the track, where the cattle guards are, over to the buggy, while I was turning to the right; and the first I saw of the horse and buggy was when it collided with the car. I could not tell how fast the horse was going. I knew it would be upon a trot, but at what rate of speed I couldn't say. It happened so quick I could not designate the speed they were going." On redirect examination he testified: "I should say the horse was going just a fair road gait,-perhaps three or four miles an hour; not running." He further testified on recross-examination: "I had a better chance to tell the speed of the hand car going by me, because I could hear that. My back was toward it. The first thing I saw was when they came together. I must have discovered the speed of the horse and the car at the same time." There was no other evidence on the speed of the car, except circumstances and results. The judge, in his charge, gave prominence to the rate of speed; referring to it as being 14 or 15 miles an hour. Under his instruction the jury must have found that the car was running at that speed, for this is the sole reference he makes to it, and he charged that such a rate of speed would be negligence. The witness was not shown to have had sufficient experience to give his opinion as to the rate of speed, under the rule laid down in Railroad Co. v. Huntley, 38 Mich. 537. Neither was his observation sufficient to enable him to form an opinion. This evidence was inadmissible, and the court should have excluded it.

3. One Blanche Walton, a witness for the plaintiff, stood upon the sidewalk near the track at the time of the accident. On cross-examination she testified that Mr. Hughes, the section foreman in charge of the hand car, came to see her the next morning, and that she had a conversation with him. She was then asked, "Didn't you state to him that you heard him make the outcry, 'Look out, there!' just as he was coming through the cattle guard?" This she denied. Several questions of this character were put to the witness, but she denied having made any such statement. On redirect examination the witness was permitted, under objection and exception, to state all the conversation she had with Mr. Hughes at that time, and testified to damaging admissions made by him, the general effect of which was that he was in fault. Counsel seek to defend the admission of this testimony upon the ground that defendant's counsel had brought out a part of the conversation, and that the plaintiff was therefore entitled to the whole of it. The case is not within the rule claimed by the plaintiff. The question was asked if she did not make a specific statement, evidently for the purpose of laying the foundation for impeaching her. Mr. Hughes is not the defendant, and was in no position to make admissions binding upon the defendant, under the well-settled rule. Andrews v. Mining Co. (Mich.) 72 N.W. 242, To view preceding link please click here and cases there cited. The matters testified to on this redirect examination had no bearing whatever upon the matters inquired into upon the cross-examination. This testimony was very damaging, and was used in the argument of counsel to attack Mr. Hughes before the jury.

4. On the morning after the accident, plaintiff sent for one of the attorneys in this case and a physician; and suit was commenced on that day by the issuing of summons, and notice served by the attorneys upon the agent of the defendant of the assignment of the claim to them, to protect their fees. The testimony of several of plaintiff's witnesses, who were his particular friends, to exclamations of pain extending over a...