Hintz v. Michigan Central Railroad

Carpenter, J. It is the claim of plaintiff that as she and her husband were driving across defendant’s railroad on Davenport street, in the city of Saginaw, on the even [566] ing of September 8, 1898, a train of defendant, negligently operated, struck their wagon, thereby seriously injuring her and killing her husband. She brings this suit to recover compensation for said injuries. She obtained a verdict and judgment in the lower court. This case was before us on a former occasion, and is reported in 13& Mich. 305. At that time we reversed a judgment in plaintiff’s favor on the ground that the verdict was against the weight of testimony. Since then this case has been tried twice (on the first trial the jury disagreed), and a suit to recover damages for the death of plaintiff’s husband has also been tried. The latter trial — a trial of the same issue as that in this case — resulted in a verdict for the plaintiff, which was afterward set aside by the trial court. Defendant contends that a verdict should have been directed in its favor on the ground that the undisputed testimony proves that plaintiff was guilty of contributory negligence. Plaintiff testified that as she and her husband approached the crossing, and a short distance therefrom, they stopped, looked, and listened; and it is to be inferred from her testimony that they listened as they moved from this point to the place of collision. She also testifies that cars standing upon a siding of defendant obstructed their view of the approaching train. It is claimed by defendant that, notwithstanding this testimony, the surroundings of the crossing, as shown by the undisputed evidence, establish contributory negligence. I state that claim in the language of defendant’s counsel: “All the witnesses, both for plaintiff and defendant, who testify at all upon these points, agree that, even if the siding were full of box cars, when a traveler gets to a point at least 30 feet west of the main track, and from there until he crosses the track, there is nothing to prevent his seeing and hearing an approaching train in time to take the necessary precautions for his safety, provided he looks and listens attentively. * * * The proof is positive and uncontradicted that when plaintiff and her husband reached the point where the box cars, if there were any upon the siding, no longer obstructed their view, they [567] had a clear view of the track for a distance of over half a mile.” We cannot agree with defendant’s counsel that the foregoing facts were proved by the undisputed testimony. On the contrary, witnesses for the plaintiff testified that, immediately after passing the box cars on the siding, one seated in a vehicle could see in the direction from which the train came only 175 or 200 feet, and that at that time his team would be within 15 or 20 feet of the track. If the jury believed this testimony — and they certainly had a right to believe it — after they passed the cars on the siding plaintiff and her husband had a very limited opportunity indeed to discover the approaching train. We cannot say — and this is precisely what defendant asks us to say — that the opportunity was such that failure to discover and avoid the train was negligence, as a matter of law. See Coffee v. Railroad Co., 139 Mich. 378; Guggenheim v. Railway Co., 66 Mich. 150. In reaching this conclusion, we have considered defendant’s claim that certain photographs introduced in evidence conclusively proved that the cars on the siding did not seriously obstruct plaintiff’s view of the approaching train. We do not think these photographs conclusively prove what is claimed for them. As shown by said photographs, that part of defendant’s siding nearest to the highway and to the main track was vacant. According to plaintiff’s testimony, this part of the siding was occupied by box cars which obstructed the view of the approaching train. The photographs, with these cars omitted, did not, therefore, according to plaintiff’s testimony, show the situation as it existed. 2. We are asked to set aside this verdict, as we did the verdict in the former trial, on the ground that it is against the weight of the testimony. We thought the weight of the testimony as shown by the former record proved that plaintiff’s injuries resulted, not from a collision with defendant’s train, but from a runaway which occurred after [568] defendant’s train had passed Davenport street. On this occasion, and on this record, we are less confident of the correctness of that conclusion. Our confidence is somewhat lessened by the fact that since that time two juries, who are the ultimate triers of the issue of fact, have decided that plaintiff’s injuries did result from such collision. It may also be said that on the last trial plaintiff’s evidence was corroborated by the following testimony not introduced on the first trial, viz.: The testimony of disinterested witnesses tending to prove that the injury to plaintiff and her husband was reported to the police authorities earlier than it would have been reported had that injury resulted from a runaway occurring after the train had passed. There is also other corroborating testimony not contained in the former record. We decline, therefore, to again set aside the verdict as against the weight of testimony. Complaint is made because the trial court did not give to the jury the following request preferred by defendant: “ The jury are instructed that they have no right to disregard the testimony of any of defendant’s witnesses through caprice or without cause, merely for the reason that they are in the employ of a railroad company. The credibility of defendant’s witnesses should be judged by the jury precisely the same as they judge the credibility of other witnesses.” This request might very properly have been given. See Gregory v. Railway, 138 Mich. 368. But it does not follow that it was error to refuse it. The record does not show that anything occurred to indicate to the trial judge that the jury would, and it does not show anything to indicate to us that the jury did, “disregard the testimony of any of defendant’s witnesses through caprice or without cause, merely for the reason that they are in the employ of a railroad company.” Moreover, the trial court charged the jury to “give such credit to the testimony of each witness as, under all the circumstances, such witnesses seem to be enti [569] tied to,” and that “it is your imperative duty to try this case and decide the same precisely the same as you would if it were a suit between two individuals, and the fact that the plaintiff is an individual and the defendant a corporation should make no difference.” Under these circumstances, the refusal of the trial judge to give the request under consideration was not error. He was justified in deciding that he had already sufficiently covered the subject, and that the request Would not be helpful to the jury. I think it may also be presumed that the defendant was not prejudiced by such refusal. See Shatter v. Railway, 139 Mich. 171. Defendant’s counsel was denied the right, in cross-examining both plaintiff and her sister, to ask certain questions which related to their credibility as witnesses. We think the trial court has a discretion respecting such matters which was not abused in this case. No other complaint demands consideration. The judgment is affirmed. McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.