Kingston v. Fort Wayne & Elmwood Railway Co.

Long, C. J. The defendant, on October 10, 1891, owned and operated a horse railway in the city of Detroit. The plaintiff went upon one of its cars on that date, for the purpose of being transported as a passenger. It was what is called a “summer car,” open on both sides, with a step or running board, consisting of one board, extending the length of the car. The plaintiff, being unable to secure a seat, stood on the running board, and claims that the conductor in charge of the car negligently pushed him off, causing the injury complained of. The defendant claims that the plaintiff was intoxicated, and either jumped or fell off. On the trial, before a jury, the defendant had verdict in its favor. Plaintiff claims that he was not intoxicated at the time of the injury, but that, even if he were, he had a right to ride standing on the running board, and that if he was guilty of no negligence, and was pushed off the car by the negligent conduct of the conductor, he was entitled to recover. Complaint is made of the admission of certain evidence, and of the refusal of the court to charge certain requests, and also of some portions of the charge as given. It appeared upon the trial that the plaintiff had worked for the Union Depot Elevator Company in Detroit for seven years continuously,- and that he had severed his connection with that company between two and three years before the injury. The foreman of the elevator company was called as a witness by the defendant, and was asked why the plaintiff was discharged by that company, and, under objection, was permitted to testify that it was because of his intemperance. The superintendent [42] of the elevator company was called as a witness by the defendant, and was permitted to testify, under objection, that the reputation of the plaintiff among the people in and about the elevator was that he was a drinking man. The defendant also was permitted to show that the plaintiff was under the influence of liquor at different times a year prior to the accident. One of the police officers was called,, and permitted to testify that he knew the plaintiff when he kept a saloon; that at one time there was trouble at the saloon, and he. went in and found the plaintiff and others pretty well intoxicated. Another police officer was called, and testified that in 1891 he had seen the plaintiff under the influence of liquor. He was then asked, “ Do you know what sort of a place he had?” and answered that he considered it rather tough. This testimony was objected to by counsel for the plaintiff. Counsel for defendant insist that this testimony was competent when the plaintiff’s story and demand are taken into consideration; that his story was that the conductor treated him in a negligent manner, whereby he was caused to fall from the running board of the car; that he did not do anything in whole or in part to cause the accident; and that he was entitled to recover from the defendant, not only for the direct physical injury he received, but also for the pain and suffering, loss of time, and for loss of work which he would have received had he not been injured; that the plaintiff was called as a witness on his own behalf, and therefore put himself in the way of an attack, not only upon his honesty as a party claimant, but also upon his credibility as a witness, both generally and in respect of his version of the occurrence resulting in his injury. Counsel contend, further, that the plaintiff’s own counsel put his sobriety'in issue, and that defendant’s counsel went into the matter on cross-examination. We think it was proper examination to make inquiry as to the plaintiff’s condition"at the time of the injury complained of, and that the question was open to de [43] fendant’s inquiry as to whether the plaintiff was or was not intoxicated at the time of the injury, and that the defendant had a right to call witnesses to show that the plaintiff was intoxicated at that time. The defendant’s conductor denied that he pushed the plaintiff off, or was in any way instrumental in his falling off the car. The defendant claimed that the plaintiff fell off by reason of his intoxication; and this was a proper subject of inquiry. But the court was in error in permitting the defendant to introduce testimony showing that two or three or more years prior to that time the plaintiff was in the habit of becoming intoxicated. This evidence was undoubtedly prejudicial to the plaintiff’s case. It was proper matter of cross-examination of plaintiff to inquire what his past life had been, and what company he had kept in the past, as he was before the jury as a witness, and it was proper to inquire into his antecedents, as they had a direct bearing upon his credibility as a witness. The defendant, however, would be bound by his answers, as there is no rule which would permit the defendant to introduce direct testimony bearing upon those questions, thus raising a collateral issue. The general reputation of the plaintiff for truth and veracity was open to inquiry, but an attack upon his credibility, which would raise a collateral issue, was not open to the defense. In Williams v. Edmunds, 75 Mich. 92, it was held that it was proper to show whether the servant who was alleged to have committed the injury was or was not sober at the time the injury was committed, it being a part of the res gestee, but that it was not proper to show his intoxication at other times, as it was raising a collateral issue. In Fahey v. Crotty, 63 Mich. 383 (6 Am. St. Rep. 305), it was held that in a civil action the reputation of the plaintiff was not in issue. See, also. Pokriefka v. Mackurat, 91 Mich. 399; Klein v. Bayer, 81 Mich. 234; Culley v. Walkeen, 80 Mich. 443. It is apparent, therefore, that the court was in error in permitting the testimony showing the reputation of plaintiff as a drinking [44] man prior to the time of the injury, as well as in permitting the defendant to show by witnesses called by it the character of the hotel which he kept. As we have said, these were matters proper for cross-examination, as bearing upon the plaintiff’s character and credibility as a witness, but they were not open to other proofs, as such issues are collateral and entirely foreign to the subjects of inquiry in the suit. The court charged the jury: “If you find that the time he was upon this place he was intoxicated, then he could not recover in this case, because in the case of an intoxicated man the company was not expected, and the law would not require of this company that it should guard an intoxicated man against injury, standing in the place he was standing.” This charge was erroneous. It was asserted by the plaintiff that he was pushed off or thrown off by defendant’s conductor, and the fact that he was intoxicated would not give the conductor the right to push him off. The question of his intoxication was a matter to be taken into consideration by the jury in determining whether or not the plaintiff was in the exercise of due care in standing upon the running board while he was in that intoxicated condition; but his condition would be no excuse to the company if its conductor negligently and wrongfully pushed him off. In Thomp. Neg. p. 1174,it is said: “Intoxication on the part of the plaintiff at the time of the accident does not constitute negligence in law, warranting a nonsuit or a peremptory instruction for the defendant, but is a circumstance to go to the jury on the question of contributory negligence.” This seems to be the general rule. Stuart v. Machias Port, 48 Me. 477; Alger v. City of Lowell, 3 Allen, 402. Defendant’s conductor testified that the plaintiff was intoxicated while standing on the running board. It was therefore his duty, and he was required, to exercise care in passing him upon that running board. 4 Am. & Eng. Enc. Law, 79, note 5, and cases there cited. [45] Some question is raised in reference to the charge of the court as to the preponderance of evidence; but, upon an examination of the whole charge, we are satisfied that that question was fairly submitted to the jury, or, at least, that the plaintiff’s rights were not prejudiced .by the charge. For the reasons stated, the judgment will be reversed, and a new trial ordered. The other Justices concurred.