Howcroft v. Detroit United Railway

Ostrander, J. {after stating the facts). The record does not indicate that the plaintiff asked to have the case submitted to the jury. The court did not refuse to permit him to introduce testimony upon the subject of the incompetency of the motorman, because no such testimony was offered. The court did refuse permission to withdraw a juror, and we cannot say that in doing so sound discretion was not exercised. No excuse whatever was given for not having the witness present in court, except the one that counsel had not supposed the witness would be so soon wanted. We may treat the record and the brief as presenting the question whether the court was in error in directing a verdict for the defendant upon the testimony of the plaintiff, although strictly no such question is raised by the assignment of error. It is asserted, in the brief, that plaintiff occupied the position of a stranger attempting to enter a car. We are of opinion that the testimony conclusively establishes the fact that he occupied no such position. To infer that he proposedoto become a passenger to ride across Waterloo street and upon the Y, or that any one connected-with the service so supposed, would be [612] unreasonable. To infer that he attempted to enter the car for some purpose connected with his employment is reasonable. It was not claimed that defendant had knowledge that the motorman operating the car was incompetent, if he was so in fact. The judgment is affirmed. Bird, C. J., and Hooker, Moore, and Stone, JJ., concurred.