Whitcher v. Detroit United Railway

Moore, J. On the 8th of January, 1910, plaintiff was driving a team of horses, attached to a large express wagon, north on Beaubien street, in the city of Detroit. It had rained early in the day, and later had frozen. The streets were slippery. This was the first trip plaintiff had made on this route. He testified that, as he approached the corner of Beaubien and Clinton streets, he pulled up his horses, and stopped, looked, and listened; that he heard nothing; that he saw no cars after looking both ways; that he was standing in the front part of his wagon, back [243] of the seat, and from where he stood he could see that the way was clear for a distance of 10 or 12 feet to the east of the building on the southeast corner of Clinton and Beaubien streets; that from where he stood in the wagon to the end of the pole was a distance of from 18 to 20 feet; that after stopping, looking, and listening he started his team slowly, and as he got near the track, the car rushed out of Clinton street and upon him; that the gong was not rung until the car was in the line of Beaubien street; that the car struck the wagon pole, throwing the wagon against the car, and the plaintiff against the side of the wagon and car; that he was severely hurt. Upon completion of the direct examination of plaintiff, counsel for defendant moved the court to direct a verdict in favor of the defendant, which motion was granted over the objection of plaintiff’s counsel. Plaintiff desired to produce additional testimony, by other witnesses, to show the speed at which the car was being run and certain measurements; that no gong was rung or warning given of the approach of the car; that plaintiff stopped, looked, and listened before he crossed the track. He offered the testimony of a witness who saw the entire collision, and such other testimony and matters which counsel for plaintiff considered essential for the purpose of preparing a record. The court refused to admit any testimony, except the measurements as to the width of Clinton street between the south rail of the street car track and the curbstone, and also the distance from the curbstone to the building on the southeast corner of Clinton and Beaubien streets. This testimony showed it was 8 feet from the car track to the curb, and 9 feet from the curb to the building. The judge then directed a verdict for the defendant. The case is brought here by writ of error. We think the plaintiff should have been allowed to put in his testimony and make his record. See Field v. Clippert, 78 Mich. 26 (43 N. W. 1084); Smalley v. McGraw, 148 Mich. 384 (111 N. W. 1093, 112 N. W. 915); Barto [244] v. Steel Co., 155 Mich. 94 (118 N. W. 738); Haynes v. Maybury, 166 Mich. 498 (131 N. W. 1110); Minkstimas v. Pantlind, 170 Mich. 468 (136 N. W. 377). Judgment is reversed, and a new trial ordered. Steere, O. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.