Scheel v. City of Detroit, Docket No. 40

Docket No. 40 | Mich. | Mar 18, 1902

Lead Opinion

Grant, J.

{.after stating the facts). Plaintiff’s counsel concede that the instructions upon the questions of the negligence of the defendant and the contributory negligence of the plaintiff were correct, for no question is raised upon them. All the errors assigned relate to the admission of the testimony of the two oculists who examined the eyes of the plaintiff about the time of the accident, and who were permitted to testify as to their condition; to the instructions upon the measure of damages, and the cause of plaintiff’s injuries.

If the cross-walk was in a reasonably safe condition, as required by the statute, or if plaintiff was guilty of contributory negligence, all the other questions become immaterial. We must assume that this jury was one of average intelligence. To assume that they would be prejudiced by the testimony of the physicians, or by the charge of the court upon the other branches of the case, would impeach their intelligence. Naturally, the first question for the jury to determine would be, Was the defendant negligent ? If they found this question in the negative, it would be unnecessary for them to consider any other branch of the case. A determination that there was no negligence on the part of the defendant is conclusive of all the other questions in the case, and renders it unnecessary to consider the alleged errors. Kramer v. Gustin, 53 Mich. 291" court="Mich." date_filed="1884-04-16" href="https://app.midpage.ai/document/kramer-v-gustin-7931575?utm_source=webapp" opinion_id="7931575">53 Mich. 291 (19 N. W. 1); Germaine v. City of Muskegon, 105 Mich. 213" court="Mich." date_filed="1895-04-30" href="https://app.midpage.ai/document/germaine-v-city-of-muskegon-7937649?utm_source=webapp" opinion_id="7937649">105 Mich. 213 (63 N. W. 78); Anderson v. Boom Co., 57 Mich. 216" court="Mich." date_filed="1885-06-10" href="https://app.midpage.ai/document/anderson-v-thunder-bay-river-boom-co-7932091?utm_source=webapp" opinion_id="7932091">57 Mich. 216 (23 N. W. 776); Johnston v. Davis, 60 Mich. 56 (26 N. W. 830).

Complaint is made that the judge refused to permit plaintiff to show the condition of the cross-walk prior to 1897. Its condition for two years prior to the accident was certainly sufficient time to establish the implied notice which the law holds sufficient, and this is the sole object of such testimony.

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.

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Rehearing

ON MOTION EOR REHEARING.

Per Curiam.

An application for rehearing has been filed, in which it is stated that we were in error in stating that no question was raised upon the instruction of the court as to the question of contributory negligence. We find, upon referring to the three briefs filed in the case on behalf of the plaintiff, that we were in error in this statement. The error probably arose from the fact that the question was not raised in the main brief, but was raised in a second brief. It is undoubtedly due to counsel that this correction be made. This, however, cannot change the result, for the determination by the jury that the defendant was not guilty of negligence renders the question of contributory negligence immaterial. Upon the other points raised in the application, we see no occasion to change our former opinion.

The application is denied.