194 Mich. 595 | Mich. | 1917
Defendant operates a street railway in the city of Manistee. It also operates in the summer months an electric railway from the city to Orchard
Late in the afternoon of July 26, 1914, plaintiff, a boy of 18 years, and two male companions boarded one of the cars in the park to return to the city. They took seats in the front end of the car. Before leaving the park the car filled rapidly, and plaintiff surrendered his seat to a lady and stood on the running board on the east side of the car facing his companions. The car appears to have been well under way when it reached the straight track in the highway. While plaintiff stood facing and conversing with his companions he was swept off from the car by contact with one of the trolley poles and injured.
The negligence which he relied upon for recovery was the roughness of the track, the close proximity of the trolley poles to the track, the excessive speed of the car, and the failure to warn him of the danger. The defendant denied that 'it was negligent in any of these respects, and asked for a directed verdict, on the ground that no negligence had been shown on the part of the defendant, and on the further ground that plaintiff’s negligence was apparent from his own testimony. The court denied the motion and submitted the case to the jury, which rendered a verdict of $1,500.
The charge is made in the declaration, and the proofs tend to support it, that the pole in question was only 15 inches from the running board, and that it inclined to the west, thereby bringing the upper portion thereof nearer the track; that the track was crooked, rough, and uneven; that the car was driven at a high rate of speed; and that by reason thereof it caused a lateral movement of the car as well as an up and down motion, which brought the plaintiff in contact with the pole. It was further shown that no warning was given him of the danger.
Whether it was negligent to operate the car at the speed it was going'over this track, considering its condition and its close proximity to the pole, without at least warning plaintiff of the danger, was a question of fact to be determined by the jury.
“Mr. Neal: Doctor, the evidence shows that you have presented a bill for $150 for your professional services in doctoring Mr. Murphy. Has any part of that bill been paid?
“Mr. Smurthwaite: I object to that as immaterial and irrelevant.
“The Court: The objection is sustained. (Exception noted for defendant.)”
Counsel now makes the point that it was error to exclude the answer to the question because if the bill were not paid it would have a tendency to show the interest of the witness in the litigation. In support of this contention the following authorities are cited: Lack Malleable Iron Co. v. Graham, 147 Ky. 161 (143 S. W. 1016); Kingston v. Roberts, 175 Mo. App. 69 (157 S. W. 1042).
As a general proposition any question upon cross-
“Q. Why did you make the change in the running board?
“A. Made this year so we would not have a repetition of what we had last year — people getting on that running board and getting injured.”
Counsel argue that the changes made in the running board after the accident was immaterial, and therefore its admission was error under the rule laid down in Moon v. Railroad Co., 143 Mich. 125 (106 N. W. 715, 108 N. W. 78), and many other cases. Plaintiff concedes the rule as stated by counsel, but he seeks to avoid its application in this instance by showing that this witness and another testified on direct examination that changes had been made in the running boards; that they had been removed from one side of the cars. In view of this we see no error in permitting the witness to answer why they were removed. It further appears that the question was answered before objection was made, and that no motion was
“The Court: How many more witnesses? I don’t want any more witnesses on the same subject in concurrence or along the same lines testified concerning. * * *
“Mr. Neal: What is that?
“The Court: You need not put on any more witnesses on the same line and character like those you have sworn on the subject. We have enough. None of them changed the aspect of anything, and there is no use of multiplying it.
“Mr. Neal: I take an exception to the remarks of the court.
“The Court: If you have anything new all right; I will hear it.
“Mr. Neal: I also take exception to that remark of the court.
“The Court: All right; take all the exceptions you want to. (Exception for the defendant.)”
Later in the trial defendant’s counsel offered the subpoena of one of his witnesses in evidence, but at the time it did not appear to be disputed that the witness had been subpoenaed. The court remarked:
“Oh, don’t waste time over such trivial matters as that.
“Mr. Neal: Give me an exception, please, to the remark of the court.
“The Court: Take all exceptions you want.
“Mr. Neal: And give me also an exception to this remark, please.
“Q. I now ask you if that was the subpoena served upon you?
“A. It was not. This was.
“Q. You received a copy of it, did you?
“A. Yes.
“Mr. Smurthwaite: We are not raising any question on the witness’ subpoena.
“Mr. Neal: Your questions have been insinuating,*602 as the remark here shows, and I. object to the remarks of the court because they are prejudicial.
“The Court: That is the third objection you have taken. Do you want another one?
“Mr. Neal: I also object to those remarks.
“The Court:- Go on and take them.”
It is argued that the judgment should be reversed and a new trial ordered because of these colloquys. These collisions between court and counsel, when reduced to print, give one the impression that counsel was oversensitive concerning the court’s suggestions about wasting time over immaterial matters, and they show a slight irritation upon the part of the trial court. If it be conceded that both were in fault, how does it appear that the result of these controversies was harmful to defendant? In jury trials where much is at stake such collisions not infrequently occur. They are well understood by the public, juries are used to them, and bystanders attend with expectation of hearing them. Because this is so, it does not necessarily follow that they are injurious to either of the parties litigant. No injury to defendant is apparent in the verdict and none has been pointed out; therefore the incidents will not be held error.
‘'Mr. Beleher: This jury can do something, gentlemen, to help this boy bear his infirmities. (Objected to. Overruled. Exception noted for defendant.)
“Mr. Beleher: Each one of you gentlemen should place yourself in the boy’s position.”
The first statement is said to be error because it was an appeal to the jury to bestow charity. If we were to assume that defendant was not responsible for plaintiff’s infirmities, we could then agree with counsel, but under plaintiff’s theory defendant was responsible therefor, and from this view counsel’s ap
To the second statement no objection nor ruling was made. Consequently we do not consider it.
_ No. 1. At the time and place that plaintiff received his alleged injuries was'defendant running its said cars Nos. 1026 and 1032 at an excessive rate of speed?
_ No. 2. At the time and place that plaintiff received his alleged injuries was he leaning out from said car far enough to hit the trolley pole and beyond the other passengers standing on the running board with him on said car?
No. 3. At the time and place that plaintiff received his alleged injuries, was there any defect in defendant’s car tracks which caused said cars to bound and lurch beyond the usual and reasonable operation of its cars?
Question 2 was properly rejected because it was ambiguous and not single. Question 1, standing alone, would not have been controlling of the general verdict had it been answered in the negative. The same can be said of question 3. Had both been answered in the negative, they would have had some force, but such a finding would not have been controlling, because the jury might have concluded that the sole cause of the injury was the nearness of the pole to the track. The court was not in error in refusing to submit them.
The remaining errors assigned, including those affecting the charge of the court, have been examined, but we find them without merit.
The judgment of the trial court is affirmed.