102 Mich. 537 | Mich. | 1894
Plaintiff recovered a judgment for personal injuries received by falling into a cattle guard, fromi which defendant appealed. The' principal contest in the-case was over the question of defendant’s operation of the-road; it being claimed that it was not in possession of the-railroad at the time of the accident, though it was after-wards. The road was owned by another company. The-plaintiff claims that there was sufficient evidence that-defendant was in possession of the road at the time of the-accident to raise a question for the jury. The evidence of' the plaintiff upon the subject consisted of:
1. A traffic agreement granting to the defendant the-right to operate the road0 and have its earnings for 100 years from July 1, 1891, -and promising, on the part off the defendant, to raise $4,000,000 upon its bonds to equip-the road.
2. A mortgage executed by the officers of both companies to secure said bonds, given in conformity to' the agreement.
*539 3. Testimony by the plaintiff that .she bought a ticket at the station of the Big Four Company (that being a name by which defendant is known), and that she supposed it was over the Cleveland, Cincinnati, Chicago & St. Louis road; that “James Truitt was the company’s agent at that place;” and that she supposed “the station and platform were on the ground of this' corporation.” To this last statement, counsel for the defendant said, “No question about that.”
4. James Truitt’s testimony- that 'he knew when this railroad company extended, its right of way through there, and that the station, platform, and cattle guard were on the company’s ground. He was not asked whether he was the agent of the defendant.
Upon this showing by the plaintiff, it is clear, and neither side disputes, that the Cincinnati, Wabash & Michigan Company was the owner of the railroad, and that whatever rights to enter into possession of or operate it the defendant had, it acquired from that company. In the light of that admitted fact, the testimony of Truitt did not tend to show that the defendant was in possession, as his testimony was as consistent with the idea that he referred to the Cincinnati, Wabash & Michigan Company as to the defendant. It was apparently undisputed that at the time of the trial the defendant was in possession of the road. The statement of the plaintiff that she bought a ticket at the station of the Big Four road was true, in a sense, though the Big Four road was not in possession at the time. She bought it at the station, and that station was, when the question was asked, the station of the Big Four road. Her suppositions at the time of the trial that the ticket was over the Cleveland, Cincinnati, Chicago & St. Louis Line, and that the station - and platform were upon the company’s ground, threw no light on the question of possession at the time of the accident.
It is plain that the testimony of these two witnesses did not furnish much light upon the question of defendant’s possession at the time. Some of this testimony was
■ The contract and mortgage were legitimate evidence that the defendant was in possession, and, in the absence Of the testimony given for the defendant, would have supported the claim of possession sufficiently to sustain the verdict.
Defendant’s counsel argue that the right of defendant
Counsel for defendant complain . that the plaintiff’s attorney was permitted to read to the jury the notice to produce documents and papers, and to argue that the defendant had not complied with the order of the court by producing them. It is said that the records of the court show no such order, that it would have been void if
Various exceptions were taken at the close of the argument of counsel to statements made in the course' of such argument; among others, to his charge that “defendant was trying to dodge this liability by • claiming it was not operating the road;” that “defendant was a sea serpent, which had swallowed the small fish,” i. e., the C., W. & M., in 1891; that “it did not mortgage its other lines,but only that of the O., W. & M;” that the defendant Vas liable, regardless of the actual management; that “the Cleveland Company was a monster.” It is true that this controversy practically turned upon a cold- question of fact, i. e., whether the defendant was in control of the road at the. time' of the accident; ■ and> were the question to be submitted to a bench of judges, we doubt if counsel
A mortgage upon the road, executed by defendant, ■dated in 1893, was offered in evidence. Counsel for ■ defendant allege this to have been .error. It is asserted in opposition that the language read from it was not objected to, or any exception taken. A reference to the record ■ shows that the admission of this mortgage was strenuously •opposed, and exception taken. It was dated a year after the admitted time that the defendant took possession. It was clearly immaterial, and had no tendency whatever to prove possession two years before. It was error to admit it. Pierson v. Spaulding, 67 Mich. 640, 649; Dikeman v. Arnold, 78 Id. 455, 460, 83 Id. 218.
A physician gave evidence tending to show that, as a :result of the injury, nenritis followed. This is alleged to have been inadmissible, under the declaration, because no •secondary injuries or results were counted upon. Neuritis was described as inflammation of a nerve. The declaration -alleged that plaintiff’s body was injured by dislocation, .straining, and laceration, and injuries of muscles, nerves, •and otherwise. The evidence tended to show that the knee and hip were injured, and that the sciatic nerve
It is unnecessary to discuss in detail the various other assignments of error. Many of them are upon refusals to •give specific requests, where the ground is covered by the general charge, or where, under our view of the evidence, there was no occasion to give them. We have examined them, and find nothing in them. calling for a reversal of the case.
For the error above mentioned the judgment must be reversed, and a new trial ordered.
The traffic agreement was dated April 1, 1891; the mortgage, May 9, 1891; and the accident occurred January 2, 1892.