Selby v. Detroit Ry.

• Decision Date: 12 December 1899
• Citation: 122 Mich. 311,81 N.W. 106
• Court: Michigan Supreme Court
• Parties: SELBY v. DETROIT RY. et al.

81 N.W. 106

122 Mich. 311

SELBY v. DETROIT RY. et al.

Supreme Court of Michigan

December 12, 1899

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Marion Selby against the Detroit Railway and another. Judgment for plaintiff. Defendants bring error. Reversed.

Thomas T. Leete, Jr., for appellants.

James H. Pound, for appellee.

MOORE J.

The plaintiff received injuries while alighting from a street car. She obtained a judgment against defendants, from which judgment the defendants have appealed. We shall decline to pass upon some of the assignments of error, for the reason that no exceptions were taken to the rulings of the circuit judge. Under such circumstances, the objection which was overruled must be deemed waived.

After the judgment was entered, a motion for a new trial was made which motion was overruled. One of the grounds of the motion on the part of the Detroit Electric Railway was that the verdict against the Detroit Electric Railway is unsupported by the evidence in the case, in that the Detroit Electric Railway does not operate, and was not connected, directly or indirectly, with the operation of, the car from which the said plaintiff claims to have been thrown, and to have received her injuries. An affidavit was filed in support of this motion. The declaration filed in the case was against both of the defendants. It set up the cause of action in detail. Both defendants appeared, and pleaded the general issue. There was no suggestion that the Detroit Electric Railway had been improperly made a party, either in the pleadings, or by motion, or by a request to charge. It was not until after a verdict had been obtained against both defendants that it was claimed by one of them that it sustained any different relation to the case than did the other defendant. The defendant the Detroit Electric Railway knew just as well before the verdict as after whether it had been improperly joined. There was some evidence tending to show liability on its part. It would be unreasonable to hold that it might remain silent in relation to a defense of which it had knowledge, until after the expenses of a trial were incurred, and a verdict by a jury rendered, and then avail itself of its defense. We cannot say that such a showing was made before the circuit judge that he erred in refusing a new trial.

Among other things, the court charged the jury as follows: 'It is the duty of the common carrier of passengers for hire to safely carry the passengers, and it must afford such care as is reasonably necessary to look after women and children in their alighting as well as their passage; but I will say here, I will leave it to the jury whether they are to look after them except at the regular alighting places. I will leave that to the jury.' This is said to be error. The language used is not very happily chosen, and some things are left to the jury which it is the province of the judge to decide. It was the claim of the plaintiff that she had informed the conductor she wanted to alight at Park Place but the conductor failed to stop until the car had got part of the way across Washington Boulevard, when it was brought to a full stop, in response to the signal of the conductor to stop, and that just as the plaintiff was alighting, and about to step upon the pavement, the car was suddenly started,...