Callahan v. City of Port Huron

Montgomery, C. J. Plaintiff recovered a judgment for injuries claimed to have been received by falling on a defective sidewalk. The plaintiff’s testimony was to the effect that the injury occurred while he was walking on the sidewalk, at some little distance from a crosswalk, to which reference was made by the testimony of the defendant’s witnesses. The sole error complained of is the refusal of the court to instruct the jury that, if the plaintiff was riding a wheel at the time he was injured, he could not recover. There can be no doubt that the defendant was entitled to have this instruction given, if there was any evidence tending to sustain the defendant’s theory, for the reason that it wholly disproved any claim made by the plaintiff as to the manner of his accident, as well as the theory of his declaration. Nor do we think the general instruction of the court that, to entitle the plaintiff to recover, he must have been in the exercise of due care, nor the implication in [675] the general instructions that he could not recover unless he received the injuries in the manner alleged, would be sufficient to cure this error. The defendant has a right to, have the attention of the jury challenged to his theory of the case, if that theory is supported by legal evidence. Babbitt v. Bumpus, 73 Mich. 331 (41 N. W. 417, 16 Am. St. Rep. 585); Parrish v. Bradley, 73 Mich. 610 (41 N. W. 818). The evidence on the part of the defense which tended to show that this accident occurred at the crosswalk, and while plaintiff was riding a wheel, was evidence that he had his wheel with him; that the wheel was sold to plaintiff’s brother by one Unger, and by his brother to himself; that.it had, at the time it was sold, a “Vim” tire, which would make an impression in the earth the same as canvas; that the west plank of the crosswalk had been displaced, allowing sufficient space between it and the plank adjoining for a bicycle wheel to drop through; that there was a drop from the crosswalk to the north side of the ditch of about a foot, and that on this north slope there was found in the earth the mark of a bicycle tire which corresponded to the tire of plaintiff’s wheel; that this crosswalk in question was some eight or ten feet north of the point alleged in the plaintiff’s declaration; that a discovery of this condition and of these marks of the bicycle wheel was made by defendant’s witnesses the second day after the injury. We think that this evidence entitled the defendant to have the question submitted to the jury, and, as this was not done, although requested, the judgment will be reversed, and a new trial ordered. The other Justices concurred.