108 Mich. 215 | Mich. | 1896
The plaintiff’s dam and mill, situate upon the Boardman river, were injured by a flood, which he charges to have been caused by the negligence of the defendants, who owned a dam about half a mile above the plaintiff’s dam. A judgment for $1,200 was recovered, and the defendants have appealed.
The most comprehensive question raised by the record is whether the court should have directed a verdict for the
Several questions are raised upon the admission and exclusion of testimony, some of which will be noticed. Others we consider unimportant. The evidence showed that one Perkins owned a dam a short distance up the stream from the defendants’ dam. He was allowed to testify as to the condition of the water in the stream during the night and upon the morning in question. This was objected to upon the ground that the object was to impeach plaintiff’s other witnesses, and it is urged in the brief that this was the effect. We think counsel have overlooked the distinction between a contradiction and an impeachment. A party cannot impeach his own witness, but he may contradict him; for, if it were otherwise, he
The court refused to permit a witness to testify that the dam would not have gone out but for the high state of. the water, and we think he rightly determined that this was a conclusion of fact, and within the province of the jury.
It is contended that the court should not have permitted a verdict against Mrs. Stone, because she was not shown to have been an owner of the dam, or any interest in it. Counsel assert that it was in the highway, and that she had nothing to do with the dam. There was evidence that Mrs. Stone owned the land upon which it was built; that her codefendant was her son-in-law, and had charge of her affairs at Boardman. He stated that he owned the dam, and leased it to the Thompson Bowl Company, of which he was president. We are pointed to no testimony that shows who erected the dam, but we find in the record that at the time of its construction a witness said to Mr. Stone that it was being constructed improperly, and, from an objection made by defendants’ counsel, it would seem that this was about the year 1874. Mrs. Stone is shown to own certain lands upon, which this dam is said to have been built, by a deed from the administrator of Hamilton Stone. The same witness testifies that Thompson once bid off a job of repairing the dam. It is inferable, therefore, that the defendant Thompson did not build the dam, and that Harriet Stone’s grantor did. There is no evidence to show by what right Thompson owned it, as he said he did own it. That was a question for the jury under the evidence, unless his testimony is to be deemed conclusive. Inasmuch as the circumstances by which he acquired title were not shown, and his assertion of the fact was a conclusion that should have been drawn by the jury if by any one, we think the court committed no error in treating it as an open question, and
Error is assigned upon the following language:
“But if you find that the damage would have resulted anyway; that the damage would necessarily have resulted from the act of defendants; that the defendants are guilty of negligence that, caused this injury, even though you may find that the plaintiff did not use such caution as he should have used, — then that would not defeat his action.”
There is nothing in this question when the connection in which the language was used appears, viz.:
“In this case, if you should find that the plaintiff knew that there was a flood of water coming upon him, then, in that case, it would be his duty to use such care as an ordinarily cautious, prudent man would use, knowing that there was a flood imminent; and if you find that he did not do so, and by reason of his not doing so he contributed to the damage that was done to him, then he could not recover.”
It was, in effect, saying that plaintiff’s failure to make futile efforts to prevent injury would not amount to contributory negligence, — a proposition so trite that we marvel that we should be asked to pass upon the question.
Other questions are raised upon requests to charge, but an examination has failed to disclose any important omissions. The charge covers the subject, and, as we have heretofore said, where that appears, the case will not be reversed for a failure to give the charge that counsel may have outlined.
We find no error in the record, and the judgment is affirmed.