Tyler v. Nelson

• Decision Date: 31 March 1896
• Citation: 66 N.W. 671,109 Mich. 37
• Court: Michigan Supreme Court
• Parties: TYLER v. NELSON.

66 N.W. 671

109 Mich. 37

TYLER v. NELSON.

Supreme Court of Michigan

March 31, 1896

Error to circuit court, Van Buren county; George M. Buck, Judge.

Trespass on the case by Sheridan Tyler against John Nelson. From a judgment for plaintiff, defendant brings error. Affirmed.

W. N. Cook and T. J. Cavanaugh, for appellant.

A. H Chandler and Heckert & Chandler, for appellee.

MOORE J.

This case was commenced in justice court, tried there, appealed to the circuit court, and tried there. A verdict and judgment were rendered for $40 in favor of the plaintiff. The defendant appeals to this court.

The declaration was in a plea of trespass on the case, "for that, whereas, the said defendant on, to wit, the 7th day of November, A. D. 1894, at the township of Covert, in said county, with force and arms, drove a certain vehicle, to wit a buggy, which he, the said defendant, was then and there driving in and along the public highway, with great force and violence upon and against a five year old mare of him, the said plaintiff, of great value, to wit, of the value of one hundred dollars, which said mare he, the said plaintiff, was then driving in and along the said public highway, and thereby, then and there, the said defendant drove the end of one of the thills of his said buggy into the side of said plaintiff's mare, whereby she was greatly wounded, and soon after by reason of said wound died." The plea was the general issue, with notice "that the defendant, on the trial of this cause, will give in evidence, and insist in his defense, that, at the time, mentioned in plaintiff's declaration, of driving his horse and carriage, as in said declaration alleged, the defendant was driving north on the highway on a slow trot, and turned his horse to the right when the plaintiff, who was driving his horse on a slow trot towards the south, on meeting the defendant, suddenly turned his horse to the left, and crossed the road in front of defendant's horse, before the defendant had time to hold up; that, if the plaintiff's horse was injured by the thill of defendant's carriage, as alleged in his declaration, the same was done by plaintiff's negligence or fault." It was the claim of the plaintiff, on the trial, that, while he was driving on the highway, going south in the east track of the highway, he saw the defendant coming towards him, from the south, in the west track of the highway, "the defendant left the west traveled track of the highway, and drove almost directly across to the east traveled track, on which plaintiff was driving, and in a manner so sudden and unexpected that the plaintiff, in endeavoring to avoid a collision, turned his horse to the left, and drove into the ditch adjoining such east tract, but that the defendant, instead of so turning aside as to avoid a collision, drove his horse, in a grossly wanton, willful, and negligent manner, against the plaintiff's horse, whereby said plaintiff's horse was so wounded that it afterwards died." The defendant denied these claims of the plaintiff, and insisted that he is not responsible for the collision, nor for any injury which resulted therefrom. He claimed that, while he was driving on the public highway, and in the exercise of due care, he met the plaintiff, and that the plaintiff, instead of turning to the right, as defendant expected him to do, and as, in the exercise of due care, he ought to have done, turned to the left so suddenly that a collision occurred, and that, if damage resulted to the plaintiff, it was brought about, either wholly or in part, by the negligence of the plaintiff himself.

The first assignment of error is that the declaration is not sufficient, in law, to maintain this action. We think the declaration sufficient for a declaration in justice court. No objection was made, either in justice court or in the circuit court, to the sufficiency of the declaration. As we have repeatedly held, it is too late to raise a question of that nature in this court for the first time.

The second, third, and fourth assignments of error relate to the testimony that was allowed to go to the jury as to the feeling Nelson had towards Tyler before, and continuing up to, the time of the collision and what he said about the collision. We think this testimony competent, as bearing upon the question of intent or motive of the defendant in crossing over from the west track to the east track in the manner in which he did. Tribune Co. v. McArthur, 16 Mich. 452; Druse v. Wheeler, 22 Mich. 443. All the other assignments of error relate to the refusal of the court to give defendant's requests, and to the general charge as given by the court.

The testimony in the case was very conflicting. If the jury accepted the version given by the plaintiff and his witnesses, it is difficult to see how they could have avoided giving the plaintiff a verdict. On the other hand, if the jury had found the account of the transaction to be as claimed by the defendant and his witnesses, their verdict must have been for the defendant. The learned trial judge gave, in his general charge, the substance of all the defendant's requests to charge that were good law and applicable to the case. So far as it is necessary to quote his charge, it is as follows:

"The burden of proof is on the plaintiff to establish the truth of the matters which he alleges by a fair preponderance of the evidence in the case. He is not bound to prove his case beyond a reasonable doubt, but he should prove the facts which he alleges by evidence which, in the mind of the jury, weighs more than the evidence given on the part of the defendant. And I instruct you, gentlemen, in several requests as presented me by the defendant, as follows: You are further instructed that the injury alone will not support an action on the case. There must be a concurrence of the injury and wrong, and if the act be not unlawful in itself, then, unless done in a manner, at a time, or under such circumstances as would render it wrongful or lacking in due regard for the rights of others, there can be no liability for the injury that may result. You are instructed that a highway is a public way, for the use of the public in general, for passage and traffic, without distinction, and the restrictions upon its use are only such as are calculated to secure to the general

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