Elliott v. Detroit United Railway

Steere, J. On the evening of December 16, 1919, plaintiff’s intestate was struck and killed by a southbound limited car on the interurban line between Detroit and Mt. Clemens, at a place called Halfway, located, as the name implies, about an equal distance from each of those cities. Limited interurban cars did not stop there. Deceased was a youth 15 years and 8 months of age. When killed he was on the railway track helping his brother push from it a Ford automobile which had stalled there. They, with another brother and his wife, were driving in the Ford auto northerly from Detroit towards Mt. Clemens on Gratiot avenue or road along which the interurban line ran, its tracks being on the side and some two feet or more away from the paved part of the road. At Halfway they turned across the railway and drove towards a lighted store located 30 feet from the track, at first taking it for “Rogers,” which was two miles further along, and, discovering their mistake, circled round to cross the track and get back onto the pavement again. When the car stalled on the track deceased and the brother who was not driving got out, cranked the auto and proceeded to push it backward clear of the track. The night was dark and stormy. It was or had been snowing. Plaintiff’s witnesses said it was not snowing at that time but had been. The weather reports and defendant’s witnesses showed that it was then snowing. In shoving the auto backward off the track deceased pushed on the left-hand *95 fender, said to be nearest the approaching car, while his brother pushed on the right-hand fender. When the interurban came upon them the auto was clear of the track and untouched by it. The brother saw its approach in time to spring clear of the track, shouting a warning as he did so. Deceased was struck and carried upon the fender of the interurban until it stopped, a distance variously stated at from 400 to T,000 feet. When taken from the fender he was dead, whether death was instantaneous is in dispute. Plaintiff’s declaration plants the action under the death act. The grounds of negligence charged against defendant are an excessive speed of 40 miles an hour, failure to give warning by whistle or otherwise and failure to display any headlight. That the interurban was running at a speed of between 40 and 45 miles an hour until close upon the scene of the accident is not denied. Some of plaintiff’s witnesses estimate a greater speed. It was equipped with an arc headlight and whistle. The testimony of witnesses for the respective parties is in conflict as to whether the whistle was sounded and the light displayed. A motion by defendant for a directed verdict in its favor on account of deceased’s contributory negligence was denied. Verdict was rendered in plaintiff’s favor for $7,500, followed by judgment for that amount. A motion by defendant for a new trial on various grounds, including the claim that the verdict was against the weight of the evidence and excessive, was denied. Defendant freights the record with 69 assignments of error, many of which may be passed without discussion. The most meritorious assignments involve the questions of contributory negligence, excessive verdict, claimed erroneous admission of testimony directed to the measure of damages, intemperate and prejudicial appeal and assertion to the jury by plaintiff’s counsel, and that the testimony does not support *96 the verdict. Passing the questions of defendant’s negligence and deceased’s freedom from contributory negligence, we are impelled to agree with defendant’s complaint that upon this record the intemperate assertions of plaintiff’s counsel are prejudicially reflected in the amount of the verdict, which fails in evidential support and is manifestly excessive. Plaintiff declared under the death act. During the trial the court said, and counsel made no protest: “It is conceded he is trying this case under the instantaneous death act and he is to be governed by that.” No special pecuniary damages are alleged in the declaration. The subject is only mentioned in the ad damnum clause where plaintiff “demands judgment against the defendant for damages in the sum of $20,000neither does it count upon pecuniary loss of prospective earnings of the intestate. In Hurst v. Railway, 84 Mich. 546, it is said: “Such damages for loss of prospective earnings are special in their character, and must be specially pleaded.” In Rouse v. Railway, 128 Mich. 149, that rule is re-stated and it is further said, referring to the Hurst Case,— “In that case the measure of damages was also limited to the prospective earnings of the child until he became 21 years of age, taken in connection with his prospect of life less the expenses of his own care and support.” Whatever may be claimed as to the effect of the judicature act upon that rule of pleading, the rule of law relative to pecuniary damages sustained by those legally entitled to the prospective earnings of a minor in case of his instant death has not been changed. In Beach v. City of St. Joseph, 192 Mich. 296, 305, the rule is again stated as follows: “The action here, however, is by the administratrix of intestate’s estate, and the recovery is had under the statute * * * for the benefit of the parents, for the pecuniary loss sustained by them. The measure *97 of damages, if any, is limited to the prospective earnings of the child until she should arrive at the age of 21 years, taken in connection with the prospect of life, less the expense of her care and support.” The trial judge correctly instructed the jury as to the measure of damages on that basis, but on what theory or supporting evidence the jury under the law arrive at the amount awarded is not disclosed. Plaintiff’s testimony was to the effect that deceased was a healthy, normal, well-behaved boy, and helpful for his age, who had lived with his parents and regularly attended school until close of the school year in the spring preceding the accident. As he grew older and able to earn something he worked for others at times, when free from school and in vacation, and had earned on such occasions as much as $10 per week. During the summer preceding his death his last employment, starting in July, was with a tabulating machine company as a messenger boy at $15 per week. His father testified he gave all his wages to him, while other members of the family said that he sometimes gave all his wages to his parents and sometimes did not. He lived at home, had learned no trade or skilled vocation and until shortly before his death had experienced no' regular employment. The lowest estimate by members of his family as to what it would cost to support him was “$4 or $5” and the highest $10 per week. Assuming that he would contribute to the support of his parents $10 per week for the next five years and four months, until he reached his majority, computed on present value, as is the mile, his contributions would be but a fraction of the amount awarded by the jury. Deceased’s parents were living. His father was a carpenter “between 55 and 60” years old, and his mother “probably a little over” 50 years of age. While it was competent to show the circumstances, age, health and means of support of the beneficiaries *98 (Peklenk v. Isle Royale Copper Co., 187 Mich. 644), it is persuasively contended for the defense that plaintiff’s counsel was permitted against objection to feature and emphasize- that line of testimony with prejudicial details both iii evidence and argument. Members of the family testified that the father was hurt about a year before while working in -the Detroit shipyard, while the mother was crippled with rheumatism and both were unable to work, but that the mother did work out as a washerwoman to help support the family. The father was permitted against repeated objections to enlarge upon the distressing details of the accident which befell him in the shipyard and his wife working as a washerwoman, in part as follows: “Q. As a carpenter where were you working prior to the time you were injured? “A. At the Detroit ship-building works. I was running a rip-saw at the time. “Q. What happened to you with that company? A. I was struck by a board off the rip-saw, it struck me right over the head, right there. “Q. What, if any, injury was occasioned by this board striking you? * * * “A. It broke two ribs. I had two ribs broken and was hurt inwardly, beside. “Q. Were the ribs driven into any organs of the body? “A. Yes, they were driven in. “Q. Did you have any difficulty with your lungs as a consequence of these ribs being broken? “A. Yes, sir. * * * “Q. What is the condition of your health? “A. It has never since the accident been as good. * * * “Q. State whether or not when you were hurt and cut off from your employment it was necessary that your wife work in a factory to help you to live. “A. She went to work, yes, sir. “Q. Is it necessary because of your injury and not having sufficient funds for her to have employment? *99 “A. It certainly is, and she is taking in washing right now.” In his address to the jury plaintiff’s counsel, against repeated objections, broadcasted with the laundry-work of deceased’s crippled mother an emotional appeal of passionate condemnation against speed maniacs and defendant, running in part as follows: “I say to you that that is little short of manslaughter, when they run a car 45 miles an hour, * * * He said he cannot stop unless he sees it, and he cannot see but 200 feet, and he says he will, go at a rate where he cannot stop for a thousand feet,, if the corporation says so. Have things come to that state? Have they come to a state where there is no heart, where people’s sons and relatives have to be placed out here in the cemetery because a motorman gets an order to make a certain schedule? * * * That is what he said, I leave it to the exact words; Mr. Davis used — ‘yes, I would do it if my schedule said so.’ In other words, if they told him to kill a man, if it was the order of the D. U. R. he would kill him. * * * Because that is exactly what it means; if he says he cannot stop for a thousand feet, can only see 200 feet at the crossing, and he would drive 60 miles an hour, if the company said so, then if they said the word he would take a life if it happened to be there. * * * Now if you went home at night and you read in a newspaper that an assassin had jumped out and stuck his knife into human flesh, that is bad— * * * But I say to you it is even worse, that this boy was on the railroad track, where he had a right to be, to have this plunging instrumentality of death coming lunging in the darkness and take away a life, I say that is worse, and all we can say of that boy is that he is gone because this car was plunging along there. *• * * “They demand human flies on buildings and aeroplanes in the air and all kinds of nonsense and because the D. U. R. gives them that speed, that corporation is loaded up with coppers in its treasury. * * * That is exactly what he claims; and he stands up be-' fore you, that they demand speed, to go out into the country, so that if that speed goes to such an extent *100 that that old lady and that old man have to lose the life -< of a boy,/ it is time that in the country we do what Judge Bartlett is doing in the city, take these speed maniacs ana put them behind the bars where speed .mania does not take human life. * * * I know the sympatheticalness of the D. U. R. and these lawyers who'get down to a jury and say, this is a nice business proposition and that kind of stuff, that confidential talk.” It is contended for plaintiff that with few exceptions defendant’s counsel failed to make specific objections, that no motion to strike out was made, and in but one instance was a specific ruling asked. The presiding judge was present during the argument, and when objection was early made to that line of prejudicial declamation, ruled that, “in making his remarks he (plaintiff’s counsel) must confine himself to the testimony” without otherwise passing on the propriety of the matter objected to. Objections were repeatedly made on the ground that counsel’s remarks were prejudicial, and in at least two instances a ruling by the court was insisted upon. To one of them the court said, “I do not see anything in that,” and to the other, which was directed to the last quotation, said: “The ruling is he is proceeding properly.” In making the y remarks to which objection was interposed/counsel did not confine himself to the record, amongst other things basing his inflammatory appeal to the jury on what he asserted some other court was doing with speed maniacs. ** For the foregoing reasons the judgment must be set aside, with costs to defendant, and a new trial granted. Clark, C. J., and McDonald, Sharpe, Moore, Fellows, and Wiest, JJ., concurred with Steere, J.