Marsh v. Burnham, 179 N.W. 300

Marsh v. Burnham

179 N.W. 300

Mich.

1920

Check Treatment

Brooke, J.

(after stating the facts). Dеfendant now reviews the case in this court under 62 assign*679ments of error, which are argued by counsel under 8 different heads.

1. Under this subdivision, defendant complains about thе opening statement of counsel to the effect that defendant, in contravention of the statute (1 Comp. Laws 1915, § 4816), did not stop and give reasonable assistance to the plaintiff and did not, for several weeks thereafter, visit him or inquire as to his condition. We are of the opinion that no- reversible error is disclosed under this head.

2, 3. Errors grouped under these heads are based upon the alleged improper cross-examination of defendant by plaintiff’s cоunsel. In such cross-examination, counsel for plaintiff endeavored to go into the private family affairs of defendant and persisted in asking questions relаtive thereto after rulings excluding them had been made by the court. This court has very consistently held that a broad latitude should be permitted counsel in cross-еxamination and that the extent to which it should be permitted is addressed primarily to the sound .discretion of the trial judge. A reversal is warranted only where there is а clear abuse of discretion by the trial court or where it is apparent that in asking the questions objected to or in making offer of proof, the offending counsel has acted in bad faith, or where the alleged misconduct of counsel is reflected in the verdict.

The case was contested with vigor on bоth sides and it must be- said that counsel for plaintiff proceeded at times with more zeal than discretion; yet, in the light of the result, we cannot say that a. reversаl should be granted. Upon this branch of the case, many authorities are cited by counsel for both sides, and for the convenience of the profession they are here appended. People v. Thompson, 122 Mich. 411; Langworthy v. Township of Green, 88 Mich. 207; Turner v. Foundry Co., 97 Mich. 177; Clink v. Gunn, *68090 Mich, 135; Kerr v. Manufacturing Co., 155 Mich. 191; People v. Gotshall, 123 Mich. 474; Scripps v. Reilly, 38 Mich. 10; O’Connor v. Madison, 98 Mich. 192; Knickerbocker v. Worthing, 138 Mich. 224, and cases cited therein; Johnston v. Insurance Co., 106 Mich. 96.

4. Error is assigned on the admission over objection ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of an answer to the following question:

“Q. Well, you can answer the questiоn; are you as sure of that as you are of anything else that happened that day?”

Counsel for defendant cites in support of his position the case of Rains v. State, 88 Ala. 91 (7 South. 315). The question asked the witness in this case was as to whether “a certain portion of his testimony is as truthful as the balance.” In a later Alabama case, Central of Georgia R. Co. v. Edmondson, 135 Ala. 336 (33 South. 480), the question practically conformed with the one put in the case under consideration, and was held to be competent. We are of the оpinion that such a method of cross-examination is not to be commended, but that its allowance by the trial court does not constitute reversible errоr.

5. In the course of the cross-examination of one of defendant’s witnesses, plaintiff’s counsel inquired of the witness, in effect, if his testimony was not influenced by somе personal trouble between the witness and plaintiff’s counsel, to which the witness replied that it was not. The following then occurred:

“Q. It had nothing to do with it?

“A. I haven’t expressed аny desire to love you ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍or kiss you, or anything like that.”

Thereupon a demonstration of laughter and applause occurred in the court room. Several of those offending were called to the bar of the court and ad-' monished that their, conduct constituted contempt, for *681which, however, they were not punished, but were permitted to retire with the warning. This incident was made the occasion of comment by counsel for plaintiff in his closing remarks to the jury. Counsel fоr defendant, citing People v. Wolcott, 51 Mich. 612, assert that the course adopted by the trial court was unnecessary and improper and that plaintiff’s attorney had no right to make it the basis for the argument that he did. In his«charge, the court admonished the jury that they were to pay no attention to the incident. We think the point without merit. Devich v. Dick, 177 Mich. 173.

6. Assignments under this provision are directed, to the charge of the court, and particularly to the following excerpt:

“Under the circumstances of this case, one who violates the law of the road by driving an automobile on the wrong side assumes the risk of such experiment; and if injury is caused thereby to another, then the persоn driving on the wrong side of the road, having assumed the risk of such experiment, is guilty of negligence, and it would make no difference whether he was driving fast or slow.”

It is urged by appellant that this instruction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is in conflict with our holding in Winckowski v. Dodge, 183 Mich. 303, where it was said by Mr. Justice Steere:

“The undisputed evidence that defendants’ car was on the wrong side of the road, passing the vehicle it was meeting on the left, alone raises a presumption of negligence on the part of its driver, and when such negligence is shown to have had a causal relаtion to the injury inflicted upon the plaintiff, as is the case here, a prima, facie case of actionable negligence is presented. * * * If, as claimed by defendаnts, there were justifying circumstances tending to show it necessary for the driver to take the left side of the road, the question was of fact for the jury and not of lаw for the court. If facts were shown warranting the driver in passing to the left, it then became his *682duty to observe that degree of caution and proceed with care at such reduced speed as was commensurate with the unusual conditions.”

Section 4592, 1 Comp. Laws 1915, requires drivers of vehicles to seasonably drive to the right of the middle of the traveled part of the road. We have frequently held that the violation of a statute constitutes negligence per se. Billings v. Breinig, 45 Mich. 65; Syneszewski v. Schmidt, 153 Mich. 438; Little v. Bousfield & Co., 154 Mich. 369; Van Doorn v. Heap, 160 Mich. 199; Tabinski v. Manufacturing Co., 168 Mich. 392. It is true that in the Winckowski Case it was said that the fact that defendants’ car was on the wrong side of the road (in contravention of the statute) constitutes a prima facie case of actionable negligencе only. In that case, however, defendants claimed that there were circumstances tending to show that it was. necessary for them to drive on the wrong side оf the road. In the case at bar, defendant made no such claims. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍He offered no excuse for his failure to keep upon the right or lawful side of the rоad, but strenuously insisted throughout the case that his machine, in fact, was at all times, on the side of the road where it had a legal right to be.

It will be noted that, in the languаge complained of, the learned trial judge prefaced .his instruction with the words “under the circumstances of this case.” We are of the opinion that where, as in the case at bar, the sole question in dispute was whether the collision occurred on the left-hand side of the road, as claimed by plaintiff, or upon the right-hand side of the road, as claimed by defendant, the instruction criticized is not erroneous. It seems to us it would have been idle for the court to have instructed the jury that for defendant to drive upon the wrong side of the road was prima facie negligence only, where the defendant at all times denied that his car was on the left side of *683the road. In other words, such a charge would have injected into the case a theory unsupported by any evidence — a situation entirely different from that considered by this court in the Winckowski Case, supra.

7. Assignments here relate to the refusal of the court to charge as requested. We have examined thе charge with care and believe that it properly states the law as applicable to the facts in the case and is therefore subject to no just criticism.

8. It is urged by defendant that verdict should have been directed upon the ground that plaintiff was guilty of contributory negligence himself in entering the smoke scrеen. The trial judge instructed the jury that both parties had a right to enter the screen and use the road, using such additional caution as the circumstances surrounding thеm rendered necessary and proper. This instruction we think correct. The question of whether plaintiff was negligent in entering the screen under the circumstanсes and in the manner he did was, in our opinion, for the determination of the jury. In other words, his conduct was not such as to induce all reasonable minds to agree that it was negligent.

The judgment is affirmed.

Steers, Fellows, Stone, Clark, Bird, and Sharpe, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍JJ., concurred. Moore, C. J., did not sit.