Vezina v. Shermer

BROOKE, J. (after stating the facts). The first assignment of error is based upon the refusal of the court to grant defendant’s motion for a new trial. No request was made to the trial court to file reasons for denying the motion, and no reasons were filed by the trial court. No exception was taken to the denial of the motion. • We must hold that this question is not before us on this appeal. Groat v. Railway, 153 Mich. 165 (116 N. W. 1081); Blakeslee & Co. v. Manufacturing Co., 153 Mich. 230 (117 N. W. 92); Act No. 314, chap. 18, § 63, Pub. Acts 1915 (3 Comp. Laws 1915, § 12635). Defendant next argues his 2d, 5th, and 6th assignments, based upon the alleged erroneous admission of the testimony of the physician who attended plain [761] tiff; the objection being that the declaration was insufficient to support proof under the rule that special damages must be specially alleged. The declaration recites: “By means of the premises the said plaintiff was forced and obliged and did lay out and spend a large amount of money, to wit, $200, in and about endeavoring to be cured of said sickness,' lameness, nervousness, and disorders occasioned as aforesaid, and this plaintiff will be forced to lay out large sums of money endeavoring to be cured of said sickness, lameness and disorders, occasioned as aforesaid, all of which disabilities are permanent in character.” We are of opinion that this averment in the declaration was sufficient to support proofs as to the number of visits paid by the doctor and the amount of his charges. The 8th assignment is based upon the admission of the following testimony over objection: “Now because of your injured condition, how much of the time can you work? “A. Probably four days a week, four days out of six.” The objection urged is that the testimony is speculative, uncertain, remote, and a mere guess on the part of the witness. We think the objection untenable, particularly in view of the fact that plaintiff was examined carefully both upon direct and cross-examination as to his ability to labor. Error is assigned upon the following, John Nerlinger, a witness for the defendant, being upon the stand: “Q. Now, whether or not Mr. Shermer appeared to have his car under control ? “Mr. Powers: We object to that as a conclusion; let him tell what he did, and the jury will determine the other. “The Court: Sustained. “Q. Well, did he have his car under control? [762] “Mr. Powers: Of course, we make the same objection to the same question. “The Court: Sustained. “Q. How far did the car run after the bicycle and the car came together? “A. Well, I should say not over six feet, but I could not be positive as to that. “Q. What did Mr. Shermer do, if you know, to stop the car? “A. Well, he put his foot on the brake and the clutch at the same timé, and stopped the car almost instantly.” While we are of opinion that the court might very well have permitted the answer to the question, and that the answer would not necessarily have involved a conclusion by the witness, in view of the later examination of the witness, the exclusion of this answer is certainly not reversible error. The 12th assignment of error is based upon the action of the court .in striking out the answer of the defendant’s wife to the following question: “Q. Now, Mrs. Shermer, you wouldn’t know whether or not he was looking back; now is that the truth of it? “A. Well, I know he was not because he never does look back when he drives.” When this question and answer is read with the context, it plainly appears that the ruling of the court was proper. The 13th, 14th, 15th and 16th assignments of error are based upon the refusal of the court to direct a verdict upon the ground that under the testimony plaintiff was clearly guilty of contributory negligence, as a matter of law. Replying to the arguments made in support of these assignments, it is only necessary to say that we have read this entire record with care, and are satisfied that the question of plaintiff’s contributory negligence as well as the question of defend [763] ant’s negligence raised issues of fact properly determinable by the jury alone. The 18th and. 19th assignments of error are based upon alleged errors in the charge of the court. They are without merit. The judgment is affirmed. Kühn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows,. JJ., concurred.