177 Mich. 280 | Mich. | 1913
This action was brought to recover for personal injuries caused, as it is claimed, by the negligence of the defendant company. The plaintiff, who resided in the city of Grand Rapids, on the 7th day of October, 1910, was requested by a friend, named
The negligence relied upon by the plaintiff is that this engine was being backed over the crossing without any lights and without ringing any bell or giving other warning of its approach. The trial court submitted the case to the jury, and a verdict of $8,750 was rendered in favor of the plaintiff. Judgment being had thereon, the case is brought here by writ of error.
It is the claim of the defendant that the engine was properly lighted with a red light on the right side and a white light on the left side, although it is also claimed that it was light enough to see an approaching train without them, as the sun had set within an hour and a three-quarter moon was visible, and there was an electric light about 15 feet above the ground. It is further claimed that the engine was backing slowly, about 6 miles per hour, and that if plaintiff had done as he claims he did, under the conditions existing, he must have seen the engine. Defendant’s counsel requested the court to direct a verdict in favor of defendant on the ground of contributory negligence, which was denied, and in defendant’s requests to charge a similar instruction was requested. On a motion for a new trial this question was again raised, and also that the verdict was against the weight of the evidence and was unsupported by the evidence.
This brings us to the first question discussed in defendant’s brief whether, under the undisputed facts
The plaintiff and Provenzo testified that there were no lights on the engine and this is disputed by the trainmen. The engineer testified that he knew “the lights were properly lit as the hour was dark.” Other witnesses testified that objects could be dis
The question of plaintiff’s contributory negligence should be submitted to the jury when the testimony is conflicting or where candid and intelligent men might reach different conclusions upon the question. Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Haines v. Railway Co., 129 Mich. 475 (89 N. W. 349); Welch v. Railroad Co., 147 Mich. 207 (110 N. W. 1069). We cannot say that the case is so free from doubt as to warrant the conclusion that the plaintiff was guilty of contributory negligence as a matter of law.
The next point urged by the defendant is that the court in his charge assumed that it was dark at the time of the accident and erred in not submitting the degree of darkness to the jury. At the close of the proofs a colloquy took place between the court and counsel as follows:
“The Court: The defense admits if the lanterns were out or there were no lanterns on the rear end of this locomotive as it passed over this street in question, the defense would admit that it was negligence.
“Mr. Charles Wilson: No, your honor, we do. not admit that, because we do not admit it was dark enough to require them.
“The Court: I say if it were dark at that time, if it were dark enough to have lights, then there would be no question but what you would admit the negligence if there were no lights.
“Mr. Hugh Wilson: Oh, yes, we will admit that. We haven’t any hesitation about that.
“The Court: The question of light or dark is a question for the jury. If it was dark enough so it was necessary to have lights, so that lights would have been needed to have given a warning, then the defense admits that, if they did not have them, they were negligent, just as negligent as you want to make them. Then what would be the benefit of the testimony?
“Mr. Charles Wilson: I would not want to say*286 that we admit we were just as negligent as they claim we were.
“The Court: I am just saying that for the purpose of the argument.
“Mr. Charles Wilson: I do not want that statement to be taken as our admission, your honor.
“The Court: No, but then, as I understand it, there would be no question in the claims, or the claims of the defense, that if it were dark then you would be negligent if you did not have lights.
“Mr. Charles Wilson: Let me state our position; it is this: If it was dark enough to require lights, and it should be found that there were no lights on the rear of the engine, that would be fact to go to the jury on the question of negligence. It would not be conclusive evidence.
“The Court: I do not mean a man could be standing there, looking at the engine, and be run over and claim damages just because there were no lights there.
“Mr. Charles Wilson: That would be a fact to go to the jury, as to whether we were negligent. That is the extent of our admission.”
It is urged that the position of the defendant was made clear in this colloquy, and that therefore it was unnecessary to call further attention to that position by special requests to charge.
The court, in his charge,1 with reference to this phase of the case, said:
“The traveler has a right to rely upon the exercise of proper caution on the part of the railroad company through its employees. It is required to give warning of its approach, if in the nighttime, by necessary lights and other signals, and if it fails so to do it is negligent. The negligence of which it is claimed the defendant was guilty is that the engineer of the engine in question ran and drove the engine backwards in a southerly direction upon the main track of the defendant company, up to and across Third avenue, while it was dark and the air contained dirt, smoke, and steam, without giving any warning whatever of the approach of the engine and without ringing a bell,, blowing a whistle, or displaying lights*287 on the rear end or south end of the engine at the time of its approach to and upon Third avenue. The plaintiff claims that ordinary care for the protection of others required the man in charge of the locomotive, under the conditions as claimed by the plaintiff here, to give warning of its approach to and crossing of a public highway, such warning as I have before stated.”
Again he said:
“I may say to you, however, that if you find that this locomotive was running backwards on the main track of the defendant, without lights on the rear of the tender, the south end going south, after it was dark enough to obscure the approaching locomotive, the defendant as a matter of law was negligent; and if you also find that the plaintiff stopped, looked, and listened, and used ordinary care and caution to detect danger and avoid injury, as he claims he did, then and in that case he is entitled.to recover such damages as he has fairly shown you he has suffered.”
It seems to us that this clearly outlined to the jury the facts which it was necessary for them to find in order to hold the defendant liable and was a proper statement of the law applicablé to this case.
However, if more specific instruction was desired by the defendant, special request for such instruction should have been made and the failure to do so precludes defendant from assigning error. See Pruner v. Railway, 173 Mich. 146 (139 N. W. 48), and cases cited therein.
On the trial of the cause, several witnesses testified that an unlighted engine was seen standing south of Third avenue. A motion was made to strike out this testimony for the reason that there was no evidence to identify the engine which was seen with the engine which struck the plaintiff. The court, in his charge, with reference to this testimony, said:
“Some testimony has been offered by the plaintiff tending to show that an engine was seen south of*288 Third avenue and north of Fourth avenue just after the accident, and that such engine had no lights upon it, head or rear lights. The plaintiff claims that this testimony goes to establish his claim that, at the time he was struck by the engine and injured, there were no lights upon the south end of the engine which struck him. Before you can consider the evidence as to an engine south of Third avenue having no lights upon it, which was not directly identified as being the engine in question, you must first determine, from the evidence in the case and all the facts and circumstances here shown, whether or not such engine was the same engine that injured the plaintiff. If it was not the same engine, then you will not consider the testimony, regarding the lights or no lights on such engine; but, if you find from the testimony that it was the same engine, then you may consider this testimony as bearing upon the question of the presence or absence of lights on the south end of the engine at the time it struck the plaintiff.”
There was conflict in the testimony as to exactly where the engine stopped after the accident. The engineer testified that as soon as the engine struck the plaintiff he stopped the engine within a few feet, and that the cab was immediately over the body when he stopped. This is contradicted by other witnesses, who came to the scene of the accident immediately after it happened, who said that the engine had gone 100 feet or more down the track and was not standing on the street. It seems to us that the court fully safeguarded the consideration of this testimony in charging the jury that, before they could consider this testimony, they must first find that the engine described by the witnesses was the engine that caused the accident.
Complaint is made as to the instruction to the jury with reference to the measure of damages. The extent of the plaintiff’s injuries is not questioned, as the accident resulted in the loss of his right arm and his left leg. The plaintiff testified that he was 31
“You may determine what compensation he should receive for pain and suffering, and for the humiliation of his condition; this includes the plain and suffering that he has already undergone, the mental condition that he is in and may continue to be in, and the pain arising therefrom.”
It is urged that there is no evidence of humiliation and of future suffering. The physical condition of the plaintiff is a complete answer to this claim and was sufficient evidence to warrant the charge as given.
We have examined the other assignments of error but find them without merit. The judgment is affirmed, with costs.