213 Mich. 100 | Mich. | 1921
On March 15, 1919, Margaret Ran
“I found that she had no sordes on the teeth, that she had no mucus covering her tongue, it was dry and clean; there was no indentations on the margins of the teeth; that there was no epistaxis and no tympanitis. That is a distention of the bowel, inflatus and gas. I found no rose spots on her which are usually found in typhoid fever, and I found no ileocsecal gurgling. Gurgling is that which is found between the ileum and cseeum and is almost universally present in typhoid fever. I found no enlargement of the spleen and from that I was satisfied that she had not typhoid fever. All of those symptoms which I have mentioned are symptoms of typhoid fever, and they are always present.”
In answer to a hypothetical question which fairly embodied the testimony relating to the accident, he
To justify the trial court in directing a verdict against the plaintiff, there must be, as a matter of law, a lack of competent proof to establish the claim as made. Upon this record we feel constrained to hold that no error was committed in denying defendants’ motion to direct a verdict for the reason stated. The rule that on such a motion the evidence must be considered in the light most favorable to plaintiff’s claim is so well established that we need not cite authority to support it. The test to here apply is, Had the plaintiff, at the conclusion of his proofs, presented sufficient evidence to justify a verdict in his favor? It is not for this court in determining this question to weigh such evidence as against that submitted by the defendants. This we are required to do when error is assigned on the denial of a motion for a new trial based on the claim that the verdict is against the great weight and preponderance of the evidence. We are then called upon to exercise a judicial discretion, as is the trial judge in deciding such a motion. The result of directing a verdict and setting one aside is widely different and not to be controlled by the same considerations. When a verdict is directed, the judgment entered is final; when one is set aside, a new trial is granted. The former rests on a strict legal right, the latter upon the exercise of judicial discretion. This discretion should never be exercised in directing a verdict under the law which confides to
“If you find that the defendants, both or either of them, were guilty of injuring Margaret Randolph by negligent act in starting the car in question while she was in the act of alighting therefrom, and you further find that the injuries she then received were the proximate cause of her death, you will then proceed to determine the amount of damages the plaintiff is entitled to -receive at your hands in each case and return two verdicts as to damages.”
Before giving this instruction, the court had said:
“In both suits it is the claim of the plaintiff that on the afternoon of March 15th last, his said wife, Margaret Randolph, took passage at Algonac, Michigan, for Marine City, Michigan, on an electric car on the road of the defendant the Port Huron, St. Clair & Marine City Railway Company, the said car being under the management and control of the other defendant, the Detroit United Railway, as agent for the Port Huron, St. Clair & Marine City Railway Company. Plaintiff claims that his wife paid the regular fare to Marine City as a passenger.”
The defendants severally preferred the following request:
“There is no proof in this case tending to show that the defendant is liable for any injuries that may have occurred to deceased, as no showing of any negligence on the part of this defendant was made.”
The declaration alleges that the defendant Port Huron, St. Clair & Marine City Railway Company was the owner of the railway and the defendant Detroit United Railway was operating it for and as agent of the owner. It was held in Ackerman v. Railroad Co., 143 Mich. 58 (8 Ann. Cas. 118), and in Peacock v.
There was no proof submitted that either defendant owned, operated or had anything to do with the operation of the road or the car which caused decedent’s injuries. The request of each defendant should have been given and a verdict directed in its favor.’ Counsel for the plaintiff, however, insists that “No such question was raised on the trial below or on the motion for a new trial.”
Section 14576, 3 Comp. Laws 1915, provides:
■“It shall not be necessary in any suit, action or proceeding, civil or criminal, in any circuit court, to except to the charge given to the jury, or to the refusal to give any charge requested by either of the parties to such suit, action or proceeding, but any party aggrieved by any such charge, or refusal to charge, may assign errors upon such charge, or refusal to charge, in his assignments of error, the same as if exception' had been made to such charge or refusal to charge.”
This section, which was section 10247, 3 Comp. Laws 1897, as amended by Act No. 52, Public Acts 1901, has been several times considered by this court. McCullough v. Railway Co., 101 Mich. 234; Howell v. Railway Co., 136 Mich. 432; Totten v. Totten, 172 Mich. 565. In the latter case, Mr. Justice Steere, speaking for the court, said:
“If manifestly an inadvertence, as indicated to those listening to the charge, it would seem to be the duty of plaintiff’s counsel, rather than defendant’s, to call the attention of the court to it. Under the practice which formerly prevailed, it would have been the duty of counsel for defendant to then take exceptions, there*107 by calling the attention of the court to the matter and thus give opportunity to make correction; but latterly, for reasons which we do not seek to fathom, the legislature provided that it is not necessary in such cases to except to the charge given to the jury, but the party deeming himself aggrieved by any portion of the charge may remain silent, and subsequently, when removing the case to this court for review, assign his errors upon the charge.”
While we are impressed that the charge of the court as to the claims of the parties was probably founded on the admissions and statements of counsel in their arguments to the jury, these are not included in the bill of exceptions. We feel constrained to hold that on the record as made the plaintiff’s proofs were not sufficient to entitle him to a judgment against either defendant.
The judgments are therefore reversed and a new trial ordered. The costs of this appeal will abide the result of the final judgment which may be entered