144 Mich. 254 | Mich. | 1906
Lead Opinion
This case has been previously before this 'Court, and is reported in 138 Mich. 443. Counsel for defendant then contended:
“ (1) The verdict was against the overwhelming weight of the evidence.
“ (2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence.
“ (3) That the defendant did not receive a fair trial, owing to misconduct.
“ (4) That the learned trial court erred in ruling upon evidence.
“ (5) That the learned trial court erred in charging the jury.”
“ 1 and 2 may be considered together. Was the verdict overwhelmingly against the weight of evidence? Can we say, as a matter of law, Culver was guilty of contributory negligence? Without going into details, we may say an examination of the record satisfies us the plaintiff presented a ease making it the duty of the trial judge to submit it to'a jury under proper instructions.
“3. This assignment of error relates to the conduct of plaintiff’s counsel during the taking of testimony and while presenting the case to the jury. We have no hesitancy in saying that if the conduct of Mr. Tabor, about which complaint is made, was the only improper conduct of counsel, we should reverse the case, and direct a new trial. The misconduct, however, was not confined to counsel upon one side. We do not feel it our duty to attempt from this record of nearly 300 pages to decide who-of the counsel was most to blame. We do say the conduct of Mr. Tabor on one side and Mr. Maher on the other, was such as ought not to be permitted in any court of record anywhere. * * *
“4. Did the court err in the admission of evidence? As a rule, he did not, but in one instance we think an error was made, which may have made a difference with the final result. * * *
“5. Did the trial judge err in his charge to the jury? He gave all of defendant’s requests to charge which it was proper for him to give. . With one exception, we think the remaining portion of his charge was a correct statement of the law.”
Notwithstanding this final determination of the law of this case, counsel for defendant now raise precisely the same questions, with a few additional ones, upon a record of 772 pages, including 330 assignments of errors, and present their argument in a principal brief of 194 pages and a reply brief of 76 pages.
The error in the charge referred to in our previous opinion was corrected upon the present trial, and the only rulings of the court which are open to review upon this record are those relating to the admission of evidence and the conduct of counsel. We think the court erred in permitting the witness Johnson to testify to certain meas
Notwithstanding what was said upon the subject in the former opinion, counsel on both sides traveled outside the legitimate bounds of argument. We trust that upon the next trial of this case the circuit judge will, if necessary, adopt strenuous means to compel counsel to keep within their proper field of argument.
We cannot consider the alleged errors of the court in overruling the motion for a new trial, for the reason that no exceptions were taken to such denial. Ginn v. Coal Co., 143 Mich. 84. The great bulk of this record and of the briefs of appellant is unnecessary in consequence of the prior decision of this court, and for that reason we shall limit appellant’s taxation of costs for record and briefs to 100 pages of record and 30 pages of brief.
The judgment is reversed, and a new trial granted, with costs to appellant as above limited.
Rehearing
ON REHEARING.
The judgment in this case was reversed upon the ground that the trial court erred in admitting testimony of measurements made by the witness Johnson long after the plaintiff’s injury, in the absence of evidence that the conditions remained unchanged. Upon plaintiff’s application, a rehearing was granted, and the case re-argued upon this single point. As the record stood at the time the ruling was made, we are still of the opinion that it was erroneous, but, after further consideration, we are satisfied that the error was ‘cured by testimony subsequently introduced. The testimony introduced by plain
“Q. Where was it in relation to the point where Culver was injured ?
“A. I couldn’t tell exactly, not far from there.
“Q. Where was it in relation to a joint between the rails ?
“A. Bight close to a joint.”
Plaintiff’s witness, Bundy, testified that he saw the bolt and spike in question on the day of the injury: “I noticed a break in the board fence at about that point, almost opposite where I saw this. I noticed the box factory, and this was about 75 feet east of the box factory. It was at the third joint east of the box factory;” that the bplt was next to the joint on the west side, and the spike was two inches further north; that he went to this point the day after the accident, and the bolt and spike were gone. Defendant’s witness, Bitter, testified:
“I commenced work for the S. H. & E. Co., August 13, 1902, and I pulled spikes out of the ties wherever we found them, some of these old narrow gauge spikes. We found them in surfacing, but not very often. Prom August 18th, when I took charge of Boyer’s section here, up to and including this day of September, or until Boyer returned in October, there was no change in the condition of this track from Kalamazoo street west to the west end of the box factory.”
Defendant’s section foreman, Boyer, who had charge of the track where the injury occurred, testified that he was away at the time of the accident and did not go over the track again till October 18th.
“When I was down there working, I discovered a break in the fence. There is a break and a vacant space, and then it commences again. Why, I noticed right about north of this break in the fence to the west
“ Q. You found the same tie there then that was there before the accident and there after the accident, as you saw it?
“A. Yes, sir.
“ Q. And had it the spike hole in it when you last saw it?
“A. Yes, sir. ' * * * I don’t know that the spike hole was there on the day of the accident, no, sir. All I kno,w is I found a spike hole at the time that I last testified, and after the road was in the possession and control of other people, yes, sir.”
Defendant’s general manager and, later, superintendent, testified:
“I think I saw in the tie at the conjunction of two rails, at about the point indicated on the map by the letter ‘ A ’ a spike hole about six inches north of the south rail at that time.”
The letter A on the map was opposite the west end of the gap, which extended easterly from that point some 60 feet. '
It is argued that as there were at least two rail joints opposite the gap, and the testimony of Johnson did not point out which of the joints, 30 feet apart, he measured from, the testimony of the different witnesses is not so definite as to the locality of the joint as to show that they were testifying about the same joint that Johnson measured from. This argument was given some weight in our former consideration of the case, but, upon further reflection, we have concluded that the testimony presented a question of fact for the jury as to the identity
The judgment is affirmed.
