Sterling v. City of Detroit

Decision Date08 July 1903
Citation134 Mich. 22,95 N.W. 986
CourtMichigan Supreme Court
PartiesSTERLING v. CITY OF DETROIT.

Error to Circuit Court, Wayne County; Robert E. Frazer, Judge.

Action by Henry C. Sterling against the city of Detroit. Judgment for defendant. Plaintiff having died since the trial below Jennie Sterling, as his administratrix, brings error. Affirmed.

B. T. Prentis, for appellant.

John W McGrath, for appellee.

CARPENTER J.

Shortly before 8 p. m., between daylight and dark, June 30, 1898 plaintiff's intestate, Henry C. Sterling, drove from an alley, between Twenty-Second and Twenty-Third streets, onto Howard street, in the city of Detroit. At that time the city was repaving Howard street, and for that purpose had removed the former pavement. Neither barricades nor lights were placed to guard or mark the excavation at the outlet of the alley in which plaintiff was driving. As plaintiff's intestate drove onto Howard street, the wagon dropped down about two feet into the new excavation, and he was thrown therefrom and injured. Plaintiff's intestate brought this suit to recover damages. It was his claim that the defendant was negligent in having neither barricades nor lights to guard or mark the excavation, and that he himself was free from contributory negligence, and that, as a result of his injuries, he lost his mind. Defendant claimed that it was not negligent, that plaintiff's intestate was guilty of contributory negligence, and that his mind was affected before his injury. The issue was submitted to a jury, who found a verdict for the defendant. Since the trial in the court below, plaintiff's intestate died, and plaintiff, as his personal representative, brings the case to this court. We are asked to reverse the judgment because the court erred in admitting and excluding evidence, and in charging the jury, and because of improper remarks of counsel.

We cannot agree with plaintiff's counsel that the court erred in striking out the answers of his physician witness. This is a sample of the answers stricken out: 'He is a physical wreck, as well as a mental wreck.' 'He is in that condition of health in which there is absolutely no enjoyment of life to him, and can be none.' 'There is evidence of constant pain--plenty of it.' In striking out these answers because they were simply general conclusions, and informing counsel that he could and should prove the facts, we think the court acted properly. Runnells v. Village of Pentwater, 109 Mich. 512, 67 N.W. 558, relied upon by plaintiff's counsel, has no application. There the trial court denied a motion to strike out testimony. No reason was given for the motion, and for that reason this court refused to determine the correctness of his ruling. That case would have been applicable if the trial court had denied the motion under consideration. It is applicable in this case to complaints that the trial court did not strike out certain answers of defendant's witnesses on motion of plaintiff's counsel. Defendant's counsel, by failing to state a reason for striking out this testimony, was in no position to assign error if the court had denied his motion. That circumstance, however, has no tendency to prove that the court erred in granting the motion. While the court was not, under the authority above cited, legally bound to grant this motion, it was, as we have already stated, proper, and therefore not error, to grant it. In determining whether we will reverse a case because of an erroneous ruling, this court looks at the grievance of the party complaining, and not at that of the party who is not complaining. Plaintiff cannot complain of a correct ruling, though defendant did not state the reasons for asking for such ruling.

Nor did the court err in admitting in evidence certain photographs of the place of the disaster. There was sufficient evidence of their accuracy to justify their admission.

We agree with the trial judge that the report made by patrolman Knox, showing the time of the disaster, of which it appears from his testimony he had no personal knowledge, was inadmissible.

Charge of the court:

The court refused to charge, as requested by plaintiff, that as a matter of law an ordinance of the city obligated the city to guard the excavation by barriers and to mark it by lights. This request was properly denied, as the ordinance at most afforded only evidence of negligence. Cook v. Johnston, 58 Mich. 439, 25 N.W. 388, 55 Am. Rep. 703. The court also refused to charge, as requested by plaintiff, that, if defendant was guilty of gross negligence, plaintiff might recover, notwithstanding his contributory negligence. The testimony warranted no such charge.

In charging the jury, the court said: 'There is no great physical injury proved here to this man at all. There is no evidence produced here before you as to any serious results that are apparent to your observation or to the observation of the physicians who have testified. It is claimed that his skull may or may not have been fractured; but there is no claim that there is any evidence now to determine that the skull was fractured, but that there were such results apparent from the conduct and behavior of the man that it might have been done, and that if it was done certain results would have followed. It is claimed by the defendant that this man was peculiar before, that he was really not a man of what is called perfectly sound mind before the accident, and I suppose the inference is claimed from that that this degeneracy that exists now naturally followed, and was not caused by the injury. You have this case to determine. Here is a man that was strong upon that day. There is at present no physical evidence that he ever suffered a severe injury. * * * You are at liberty to give this plaintiff damages for what you shall find to be the result and consequences of this injury. * * * But you are not at liberty to give damages for anything that you are not satisfied has been proved by a preponderance of evidence to be the result of this injury. So to you is confided the...

To continue reading

Request your trial
22 cases
  • Burbidge v. Utah Light & Traction Co.
    • United States
    • Utah Supreme Court
    • March 8, 1921
    ... ... REVERSED AND REMANDED FOR NEW TRIAL ... J. J ... Whitaker, of Salt Lake City, for appellant ... Bagley, ... Fabian, Clendenin & Judd, of Salt Lake City, for ... Utah 573] In a well-considered case from Michigan, ... Ingersoll v. Detroit & M. Ry. Co. , 163 ... Mich. 268, 128 N.W. 227, 32 L. R. A. (N. S.) 362, in which ... many ... 762, 149 P ... 870; Pulliam v. Schimpf , 109 Ala. 179, 19 ... So. 428; Sterling v. City of Detroit , 134 ... Mich. 22, 95 N.W. 986; Scheel v. City of ... Detroit , 130 ... ...
  • Patterson v. Pennsylvania Railroad Company
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • December 5, 1956
    ...he did not witness was properly excluded from evidence. Goosen v. Packard Motor Car Co., 174 Mich. 654, 140 N.W. 947; Sterling v. City of Detroit, 134 Mich. 22, 95 N.W. 986. It is also the law of Michigan that the admissions of an agent are evidence against the principal only when constitut......
  • People v. Smith
    • United States
    • Court of Appeal of Michigan — District of US
    • January 28, 1975
    ...and report regarding defendant's date of birth were hearsay and should have been excluded by the trial judge. See Sterling v. Detroit, 134 Mich. 22, 25, 95 N.W. 986 (1903). However, the prosecutor argues that because a birth certificate from the county clerk's office was properly admitted, ......
  • Zeni v. Anderson
    • United States
    • Court of Appeal of Michigan — District of US
    • November 6, 1974
    ...v. Johnston, 58 Mich. 437, 25 N.W. 388; 55 Am.Rep. 703 (1885); Flater v. Fey, 70 Mich. 644, 38 N.W. 656 (1888); Sterling v. City of Detroit, 134 Mich. 22, 95 N.W. 986 (1903); Blickley v. Luce's Estate, 148 Mich. 233, 111 N.W. 752 (1907). It has, however, followed the rule with reference to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT