Laughlin v. Street Railway Co.

Campbell, O. J. Plaintiff sued for personal injuries caused by the upsetting of a cutter while crossing defendant’s track, the cause of the accident alleged being the continued existence of a hard and slippery ridge left by defendant by the side of its track, and making the crossing-dangerous. The court below directed a- verdict for the-defendant on account of contributory negligence. Defendant now insists that, whether or not this defense is clearly made out, there is enough in the record to support the ruling, because no negligence appears in defendant, and because-the injury suffered by plaintiff, if any, was not the same-alleged in the declaration. Plaintiff alleges a good many errors in- the reception and’ rejection of testimony, in addition to- the- vital question whether the case should have been taken from the jury.-. We do not think it worth while to- dwell! on all of these-points, although some of them are nnd'onbtedly well taken. [225] The record indicates, on both sides, an amount of objecting and debating on interlocutory questions much beyond ordinary practice, and prolonging and confusing the trial, and we can hardly suppose such a state of things will be exhibited again. The issues were not complicated, and the debates on small points take up altogether too large a part of the record of the trial for the proper disposition of the controversy. The claim of plaintiff is that upon the twenty-ninth of February, 1884, not far from 9 o’clock in the morning, she, with her husband, was going in a sleigh down Fulton street, towards the railway station, and, at the junction of Park and Monroe streets, had to cross the track, which there turned upon Monroe street, with a switch at the curve. The horse was a steady one, going previously at a walk. She claims that the snow which had fallen along through the season had been thrown up beside the track, and trampled or packed down, so as to leave a depression at the track of from six to ten inches or more, with a sharp slope downward. Finding it necessary to cross the track, her husband turned the horse so as to cross as nearly as he could at right angles, but the sleigh, in making the descent, tipped over, to the left, and threw her out, her husband being thrown upon her, and her left arm was dislocated. She claims that in consequence of the- injury the shoulder and arm have been affected painfully-ever since, and more or less weakened. Defendant claimed that there was no negligent disposition of the snow; that the accident came from careless driving over the track, and that the alleged injuries were fictitious and the proof variant. If the testimony of the plaintiff and her husband, and several other witnesses, on the subject, was true, the defendant’s negligence was made out, and came within Bowen v. Detroit City Ry. Co., 54 Mich. 496, and Wallace v. Same, 58 Id. 231, cited on the argument. The court below did not allow any testimony of the condition of the road away from the immediate vicinity of the accident. As the testimony, if believed, indicated a condition of things of some [226] duration, and not a fall of snow too near the time of the accident to relieve the defendant from fault for not removing it sooner, we do not see that any harm was done by confining the inquiry, if the same rule had been applied to both parties. But it was not. It, was the duty of defendant to see that nothing was allowed to make crossing dangerous at that point, where otherwise both Fulton and Park streets would have been rendei'ed perilous to persons on lawrful business. There was sufficient proof of fault, and we do not gather from the record that the court below thought otherwise. But we think it was error to refuse to allow persons familiar with driving to give their opinion, as eye-witnesses, concerning the safety of the crossing. No amount of description can enable a jury to see the place ás the witnesses'saw it; and, while witnesses must describe the place as well as they can, it is always competent for those who are familiar with the highways, and their use, to give their impressions received at the time concerning safety or convenience of passage, and other conditions of an analogous nature. They are not strictly scientific questions, •and come within familiar principles : Evans v. People, 12 Mich. 27; Beaubien v. Cicotte, Id. 459; Detroit & M. R. R. Co. v. Van Steinburg, 17 Id. 99; Underwood v. Waldron, 33 Id. 232; Elliott v. Van Buren, Id. 49, and.note; Pettibone v. Smith, 37 Id. 579; Huizega v. Cutler & S. L. Co., 51 Id. 272. Ve do not think there is any force in the claim that the testimony of injury and suffering is fatally variant from the declaration. The injury is sufficiently described as a dislocation of the shoulder, caused by the accident, and also consequent suffering. That much, at least, is distinctly enough alleged. The question whether the dislocation threw the head of the bone into the armpit, or under the shoulder-blade or collar-bone, or elsewhere, was in itself of no sort of consequence, and the conflicting testimony of the medical witnesses shows that it could not be determined except by the medical observer before it was set, and he did not re [227] ■member. The plaintiff herself is the only person who could describe her actual suffering. Every one else must, to some extent, prove it by her appearance and declarations of present ■sensation. There was testimony of her physicians corroborating her story by their own observations of her personal appearance, and testimony from all the physicians that observations made with the aid of personal explanations must always be more satisfactory than those made without them, if they are consistent with appearances. There 'was medical testimony, and plaintiff’s own testimony, which corresponded sufficiently with the minute statements of the declaration concerning the specific injuries and consequences to authorize the jury to find them established, and the court could not have selected particular medical witnesses as most worthy of credit, had it seen fit to do so, which we do not find it did. But we do not think a declaration in such a case as this should be held to any technicality of construction. The injury which is visible and open to common observation may be described and tested easily, and should be described reasonably. But the internal and invisible ailments, which are only inferred from scientific deduction, and on which there is always room for some difference of opinion, cannot be held fo so close a rule, and there is no reason why they should be. There is no danger that the defendant in such a case as this will be taken by surprise, for any permanent or temporary mischief likely to arise from injuries such as were originally received can be understood and anticipated on one side as well as on both sides, who seem to have had no hesitation concerning their respective theories, although they were not in harmony. In our opinion, the plaintiff should have been allowed to show, by her medical witnesses, who were present, the particulars in which, in their opinion, the defendant’s medical witnesses failed to make proper or full examinations. This was itself chiefly a medical question, and inferences drawn, from impei’fect examinations must be of inferior value. This was the more important because those witnesses had taken the [228] grave responsibility of assuming that the plaintiff was shamming, and appear to have confined their observations to the-particular ailments named in the declaration. If the plaintiff suffered pain and ineon venienee, she was entitled to> recover for it, whether scientifically described or not; and if the jury believed her statements, and if they were actually true, the-fault would have been in the deductions of the- witnesses-. No opinion can prevail over actual facts. The opinions of experts are admissible concerning the scientific probability of certain consequences from particular facts, and the scientific probability of their concurrence. But neither science-nor witnesses can be held infallible; and when facts are-shown to the satisfaction of a jury to exist, they must act upon them. It does not follow, because particular physical ailments are not established, that there is no pain, or that it does not indicate something else, known or unknown. We do not think there was any such proof of contributory negligence as to authorize the court to take the- case from the jury. The parties were in the use of the highway upon a proper errand, and unless the crossing was in such a condition as to make it reckless to attempt to drive over it,, there was no wrong in doing so. It was at a place where an impracticable crossing would have been an unlawful obstruction of a public way, and there is abundant evidence to show that it was crossed habitually, although requiring some care in doing it. Plaintiff’s husband is shown, by several eyewitnesses, to have crossed it as directly as seemed practicar ble, and unless he was shown to have done so in a careless way he was not at fault. All of plaintiff’s testimony showed at least ordinary care, and the question was therefore one for the jury. The judgment must be reversed, with costs, and a new trial granted. Sherwood, J., concurred. Champlin, J., concurred in the result'.