Mynning v. Detroit, L. & N.R. Co.
| Decision Date | 05 January 1888 |
| Citation | 67 Mich. 677,35 N.W. 811 |
| Parties | MYNNING v. DETROIT, L. & N.R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Mecosta county.
Chris T. Mynning, administrator of Phillip A. Mynning, deceased sued the Detroit, Lansing & Northern Railroad Company for the death of his decedent. Judgment for the plaintiff, and defendant brings error.
Palmer & Palmer, for appellant.
Andrew Hanson, for appellee.
When this case was before us the first time, upon the testimony introduced on the part of the plaintiff, we held that the question of defendant's contributory negligence was not free from doubt, and that the court did right in submitting the case to the jury. Mynning v. Railroad Co., 59 Mich. 259, 26 N.W. 514. When the case came before us again we held that, by the plaintiff's own showing, the deceased was chargeable with such contributory negligence as precluded a recovery, (Mynning v. Railroad Co., 31 N.W. 147,) and the case was sent back for a new trial. Ordinarily, where the plaintiff had failed to make a case by reason of its affirmatively appearing that the deceased was himself guilty of contributory negligence, a new trial is not ordered; but it appeared in the record in this case that another person, by the name of Coburn, witnessed the catastrophe, who was not called as a witness, and whose testimony might possibly have aided plaintiff in showing due care on the part of the deceased, and therefore we ordered a new trial. Upon the last trial, this person was not called as a witness, and it may be presumed, either that his attendance could not be procured or that his testimony would not shed any new light upon the transaction. The case has again been tried upon substantially the same testimony as that which came under our review in the last trial, and has resulted in a verdict for the plaintiff. When the case was here last, we laid down the rule of law that must control the decision upon the facts then appearing upon the record before us. So long as the facts remain the same, the rule of law applied by this court in the decision of the cause remains the law of the case in all subsequent proceedings therein.
It appears from the record before us that, upon the last trial in the court below, a stipulation was entered into between the parties as follows: "No witnesses to be sworn on the coming trial of this cause except those which were sworn on the last trial; and either party may read such of the testimony given upon said last trial, as reported by the stenographer, as he may desire." Under this stipulation the plaintiff's attorney read in evidence to the jury such of the testimony given upon the trial of the case as he desired. He refused to read to the jury the testimony of the witness McLaughlin, mentioned in the opinion when the case was last here. Thereupon counsel for defendant offered to read the testimony of this witness as testimony in plaintiff's behalf. The plaintiff objected, and the court ruled that defendant might read the testimony of any witness in his own behalf, but he could not introduce it as the testimony of the plaintiff's witness. The defendant's counsel excepted to the ruling, and then read the testimony of the witness McLaughlin in evidence. The ruling was in accordance with the stipulation. Plaintiff's attorney complained, upon the trial in which the witness McLaughlin testified, that he was surprised at the testimony given by him, and intimated that he had been deceived by the witness. The witnesses Trafford and Wakeman were sworn and examined on the behalf of the plaintiff. Their testimony was not materially variant from that given on the preceding trial. They testified as before to seeing the train approaching from the north; to seeing the deceased approaching the crossing, and coming towards them; that their eyes did not leave him from the time they first saw him, when he was within about 30 feet of the railroad crossing, until he stepped upon the track, and was struck by the train; that he was walking fast, his head down; and that they did not see him stop, or look towards the approaching train, and that they were looking at him the whole time. The only legitimate inference that can be drawn from their testimony is that Mynning was aware of the approaching train, and purposely went in front of it; or, which is more probable, that he was unaware of its proximity, and without paying...
To continue reading
Request your trial