Williams v. Edmunds

• Decision Date: 07 June 1889
• Citation: 75 Mich. 92,42 N.W. 534
• Court: Michigan Supreme Court
• Parties: WILLIAMS v. EDMUNDS.

42 N.W. 534

75 Mich. 92

WILLIAMS v. EDMUNDS.

Supreme Court of Michigan

June 7, 1889

Error to circuit court, Wayne county; GEORGE S. HOSMER, Judge.

Action for personal injuries by Emma Williams against John C Edmunds. Judgment for plaintiff, and defendant brings error.

MORSE J.

The defendant is the proprietor of a livery stable in the city of Detroit. On the 24th day of December, 1886, one of his carriages, driven by Daniel Sullivan, an employ�, ran over the plaintiff at a street crossing at the corner of the Campus Martius and Monroe avenue, severely injuring her. The substantial ground of complaint in the plaintiff's declaration was that the defendant, by his servant Sullivan so carelessly, rapidly, and improperly drove, governed, and directed his carriage and horses, that by and through the carelessness, negligence, and improper conduct of the defendant, by his said servant, the said horses and carriage ran and struck the said plaintiff with great force and violence, whereby she was thrown with great force and violence to the ground; that the defendant by his said servant, was negligent in this, to-wit: "That by and through his said servant he recklessly and carelessly drove said horses at a high rate of speed, and did not exercise due care and caution towards the safety and rights of pedestrians and others in crossing the cross-walk, whereon said plaintiff was crossing said avenue or street, and failed and neglected to keep said horses under control, so that they could be promptly checked and stopped so as to avoid running against and upon the plaintiff and other pedestrians. By means of the said several premises the said plaintiff was then and there greatly bruised," etc. The plaintiff recovered a judgment of $3,500 in the Wayne circuit court, which, upon a motion for new trial, was subsequently reduced to $3,000. The plaintiff claimed that between the hours of 5 and 6 o'clock P. M., as she was, with due care and caution crossing the street, and when she was on the crossing, about midway between the sidewalk and the street-car track, she was knocked down, and run over by the horses and carriage of the defendant. "I was knocked down by horses coming fast. I did not see the horses before they struck me. I was right between the horses before ever I saw them. I was knocked so quick I hadn't time to think or scream, or anything else." The horses stepped upon her, and one or more of the carriage wheels ran over her. She testified that she looked up and down the street before crossing, and saw no team coming. "It was getting kind of dark. I don't think it was real dark. The lights were lit. I could see quite a ways around me; I don't know how far. I didn't dodge at all. I had no time. I was right between the horses before I noticed them." Henry Yost and his daughter Maud, 14 years old, saw the occurrence, as did also a boy, Bennie Binberg, of the same age as Maud. Yost was going towards the team, but did not see them until they were within a few feet of plaintiff. He thought the horses were going at the rate of 10 miles an hour, and that they did not stop after the accident, and kept up about the same motion until they passed out of his sight. His daughter corroborated him. Bennie Binberg testified that the horses were going at a very rapid rate. He did not see the river hold them up before or when he came to the crossing. "I don't remember whether he slackened the horses or not after they had run over her." Sullivan, the driver of the carriage, testified that, obeying the instructions from the livery office, he drove that afternoon over to Gratiot street for Mr. Penniman to take him to the Michigan Central depot. He drove down Farmer street to Monroe avenue, and came down that avenue "at a regular gait. When I was coming to the crossing about the length of the carriage I pulled up my team nearly to a walk, and there was a large crowd on the cross-walk, passing,-six or seven persons. The street was very crowded that night. When I came up to the cross-walk this woman was passing me,-was past me some two or three feet, and she looked around, and she jumped right back again. Of course, I had no power in a moment. Then, when I saw her jump back, I turned the team towards the street-car track. I turned them right around, and then I stopped my team, and I slowed down. There was a furniture wagon on Monroe avenue standing, and that furniture wagoncame to the curb-stone, so I stopped my team, and I then slowed down. There was a lot of rigs passing,-coupes and carriages and everything,-and I went down as far as Woodward avenue, and a man with a cutter came up to me. He asked my name, and I gave him my name and Mr. Edmunds' name, and then I drove to the depot." He was arrested as he was returning to the livery barn, going back the way he came. Mr. Penniman, who was inside the carriage, testified that he felt the horses slowing up. It was a close carriage, and when the carriage was nearly standing still he heard some one scream. "The driver swung his horses right around the other way to the left, and I opened the door to look out, because the horses were turned around, so I could see out that door, and I saw a crowd there, and something on the ground. I was going to get out, and there was a crowd there, and I said 'go on to the depot."'

Upon the trial the defendant offered testimony tending to show that Sullivan was not addicted to the use of intoxicating liquors, and what his reputation was as to his being a reckless and careless driver or a good, faithful driver. This proposed evidence was excluded. The defendant's counsel in this court does not attempt to claim that he was entitled to show the reputation of Sullivan as a driver, but he argues that he ought to have been permitted to show that the driver was a temperate man, and not in the habit of using intoxicating liquors. He bases his argument on the fact that the officer who arrested Sullivan as he was driving back from the depot was allowed to testify, as were others, that he was under the influence of liquor. The defendant was permitted in rebuttal of this evidence to show that Sullivan was not intoxicated or under the influence of liquor as the time the plaintiff's witnesses testified he was. Sullivan also testified that he had not been drinking that day, and that he was not in the habit of drinking or getting drunk. We think the condition of the driver, as to being drunk or sober at the time or about the time of...