194 Mich. 476 | Mich. | 1916
(after stating the facts). The first nine assignments of error are based upon alleged errors in the exclusion of testimony. The character of the testimony covered by these assignments may be illustrated by the following: The highway commissioner of the defendant township, having described the rut at the easterly approach, was asked:
“Q. I mean whether it was anything more than the ordinary rut that you find on the approach to a bridge of that kind?”
His answer was excluded, and it is strenuously urged on behalf of the defendant that the jury had a right to be informed by the witness as to whether or not the hole was of the character complained of, or whether it was just an ordinary rut to be found on a road of that kind. Another witness was prevented by the ruling of the court from stating in what respect the approach at the Carleton Creek bridge differed from the ordinary approaches to culverts and bridges on country roads in general. In urging the admissibility of the testimony offered, counsel for defendant says:
“Knowledge of the proper or best methods of building roads is not among the presumable accomplishments of average jurors. It cannot be said that the average juror is well acquainted with country roads*481 in general or with, the building of approaches to bridges along country roads.”
The court was unquestionably correct in excluding the testimony in question. Having described the depression, the opinion of the witnesses for defendant as to whether it was an ordinary or extraordinary depression was of no consequence. It was for the jury to determine, having heard all the testimony, whether the road was reasonably fit and safe for public travel. The remaining exceptions based upon alleged errors in the exclusion of testimony are of the same character and are without merit.
It is likewise urged on behalf of defendant that the court erred in overruling the motion for a directed verdict on the ground that the plaintiff by himself or his driver was guilty of contributory negligence. We are of opinion that the motion was properly denied.
There was evidence on behalf of plaintiff that the load of lumber and shingles was carried in the usual and ordinary way for such a load, and there was no testimony on behalf of defendant to the effect that plaintiff’s actions under the circumstances were negligent. We think the question was one for the jury, and we find it was submitted to the jury under a very careful and painstaking charge. Upon this point the court said, in part:
‘‘No matter how negligent you may find the township to have been, and no matter how defective you may find the easterly approach to the bridge in question to have been, yet, if the plaintiff or the driver of the team was guilty of any negligence that contributed in any degree to the plaintiff’s injury, he cannot recover. In that connection it is proper for you to take into consideration everything disclosed by the evidence in relation to the accident, to how the plaintiff drove over the bridge in question in the morning, the condition of the bridge at that time, what knowledge he*482 had of its condition, either from driving over it in the morning of that day or from any other time that he may have traveled upon it. You have also a right to take into consideration the time when the accident actually did occur, the time of the day at which it was, the nature of the load that he was bringing from Montague to his home, the lumber and the shingles, and all the other facts and circumstances in connection therewith, to say and to determine whether the plaintiff himself was guilty of contributory negligence.”
Errors were assigned upon the refusal to give defendant’s second and third requests to charge. The second request was clearly covered by that portion of the charge above quoted. The third request was as follows:
“I further charge you that there is no testimony in this case tending to show the earning capacity of the plaintiff either before or after the time of the injury complained of, and you have no right to take his earning capacity into consideration in arriving at a verdict.”
In the course of the charge relating to the measure of damages the court said:
“He is not entitled to recover anything because of any loss of time, for the reason that there is no proof in the case as to the value of his time from which you could compute any amount of damages because of that loss.”
This language we think sufficiently covers the defendant’s third request.
Error is also assigned on the following excerpt from the charge:
“Something has been said about sympathy, about the word 'sympathy/ That has been used, and both parties have said they don’t want the case decided upon sympathy. That is so; that is right; that is right. Nobody can see another man — no human being scarcely, no right made human being, can see another man*483 that has suffered a great injury without feeling for him, without pitying his condition, and his pity and feeling is called sympathy; but in this kind of a case, gentlemen, in a case like this, why, we can’t get rid of that sympathy. I wouldn’t have you do it if you could. We can’t do it, but still that is not to decide the case, gentlemen. There are other things. There are other things that must be used by a jury, and that is a sense of justice, the evidence in the case, the equality of the law must be supported in every case, and then when you have done your duty and according to your sense of justice, according to the weight that you give to the evidence, why, then you have done all that the law requires of a man.”
While the language here used by the court is not exactly clear, we are disposed to the view that the court intended the jury to understand that in reaching a verdict they were not to be governed by sympathy. Other portions of the charge which is not necessary to quote support this view. While it is intimated in the brief of counsel for defendant that the verdict was. excessive, and that such excess was superinduced by this portion of the charge, no motion for a new trial was made based upon that ground. Considering the character of the injury received by plaintiff and the amount of the recovery, we are unable to say that the, charge, even if erroneous in the respect claimed, brought about any miscarriage of justice.
The judgment is affirmed.