Scheel v. City of Detroit

Grant, J. {.after stating the facts). Plaintiff’s counsel concede that the instructions upon the questions of the negligence of the defendant and the contributory negligence of the plaintiff were correct, for no question is raised upon them. All the errors assigned relate to the admission of the testimony of the two oculists who examined the eyes of the plaintiff about the time of the accident, and who were permitted to testify as to their condition; to the instructions upon the measure of damages, and the cause of plaintiff’s injuries. If the cross-walk was in a reasonably safe condition, as required by the statute, or if plaintiff was guilty of contributory negligence, all the other questions become immaterial. We must assume that this jury was one of aver [53] age intelligence. To assume that they would be prejudiced by the testimony of the physicians, or by the charge of the court upon the other branches of the case, would impeach their intelligence. Naturally, the first question for the jury to determine would be, Was the defendant negligent ? If they found this question in the negative, it would be unnecessary for them to consider any other branch of the case. A determination that there was no negligence on the part of the defendant is conclusive of all the other questions in the case, and renders it unnecessary to consider the alleged errors. Kramer v. Gustin, 53 Mich. 291 (19 N. W. 1); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Anderson v. Boom Co., 57 Mich. 216 (23 N. W. 776); Johnston v. Davis, 60 Mich. 56 (26 N. W. 830). Complaint is made that the judge refused to permit plaintiff to show the condition of the cross-walk prior to 1897. Its condition for two years prior to the accident was certainly sufficient time to establish the implied notice which the law holds sufficient, and this is the sole object of such testimony. Judgment affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.