Silsby v. Michigan Car Co.
| Decision Date | 07 April 1893 |
| Citation | 54 N.W. 761,95 Mich. 204 |
| Court | Michigan Supreme Court |
| Parties | SILSBY v. MICHIGAN CAR CO. |
Error to circuit court, Wayne county; George S. Hosmer, Judge.
Action by James D. Silby against the Michigan Car Company for personal injuries. There was a judgment for plaintiff, and defendant brings error. Reversed.
Wells, Angell, Boynton & McMillan, for appellant.
John Ward, for appellee.
This is an action on the case for personal injuries received by the plaintiff on January 31, 1890. Plaintiff had verdict, and defendant brings error. The plaintiff lived on Eighteenth street in the city of Detroit, and about 6:30 in the evening of the day above mentioned he drove with a horse and buggy to Michigan avenue, to get a basket of coal. He drove his horse close to the curb in front of the coal yard. When the coal had been put into the buggy, and just as he was about to drive away, a truck belonging to defendant, coming up from behind, struck the near hind wheel of his buggy. The force of the blow threw the plaintiff backward out of his buggy onto the pavement, and injured his knee and arm. The plaintiff, at the time of the injury, was 41 years of age. His business was manufacturing furniture. He rented a shop, hired the help and worked with them, overseeing the work. He made from his business from $600 to $800 a year. By reason of his injury he claims that he was compelled to close his shop, and opened it afterwards only temporarily for the purpose of selling out the stock.
It is claimed by the defendant:
1. That there is no evidence to sustain the plaintiff's cause of action, for the reason that he insists that there was no one in charge of the team and truck at the time of the injury. Defendant's driver who had charge of the team and truck that day testified that before the accident occurred, and as he turned upon Michigan avenue, he was sitting on a box on his truck; that the front wheel of the truck struck down into a hole in the pavement, when he was thrown off from the box, and in falling let go of the lines and his team started off, and before he overtook them the truck struck the plaintiff and caused the injury. The plaintiff testified upon this subject that as the truck struck his buggy, and as it passed, he first saw a man on the truck, but could not tell who he was. He saw this as he was falling from the buggy. The patrolman on duty there testified that defendant's driver said to him as he came back where the injury occurred that the box tipped over on the truck and the horses got the better of him, but he did not say that he fell entirely off. The patrolman saw the driver after the accident occurred, and before he came back to the scene of the injury, and he was then on the truck driving in the regular way. The negligence charged in the declaration is that the defendant, by its servant, so carelessly and improperly drove, governed, and directed its said truck and horses that by and through the carelessness, negngence, and improper conduct of said defendant, by its said servant in that behalf, said truck of defendant, without fault or neglect of the plaintiff, then and there was driven by said servant into and struck the said buggy of plaintiff with great force and violence, and thereby the plaintiff was then and there cast out and thrown with great violence from said buggy to and upon the pavement of said street. The court charged the jury, under the evidence above stated, in accordance with this allegation in the declaration, that if they believed this driver was in charge of the team at the time the accident occurred, and that by reason of his negligence the collision occurred, inasmuch as there was no claim of any contributory negligence, the defendant would be liable to pay such damages as the jury should find the plaintiff had suffered by reason of the accident. We think there was ample evidence to go to the jury upon the question of whether the driver was upon the truck at the time the accident occurred, and that the court properly submitted that question to the jury for their determination.
2. It is claimed that the court, in its charge, submitted an issue not made by the declaration, and thus permitted a recovery notwithstanding a variance. The claim made by the declaration as to the manner in which the accident occurred has already been stated, and involved the claim that the team was in charge of the driver at the...
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