Kosnicki v. Pere Marquette Railway Co.

Moore, J. This is a personal injury case. It comes to this court for the second time. The opinion of the court will be found in 205 Mich. 387. Since then the case has been twice tried. One trial resulted in a disagreement of the jury, the other a judgment in favor of the plaintiff for $2,250. From this judgment defendant has brought the case here by writ of error. Upon the first trial the circuit judge directed a verdict in favor of the defendant. This court reversed that [247] case. A reading of the opinion in 205 Mich. 387 will show why this court reversed the case, and will also make a long statement of facts now unnecessary. Upon the last trial at the close of all the testimony the following occurred: “Mr. Shields: If the court please, I move that the court direct a verdict in this case in favor of the defendant, on the grounds: “First: Under the pleadings and proofs in this case, the plaintiff has failed to make out a case which should be submitted to the jury. “Second: No actionable negligence has been proven. “Third: The plaintiff is guilty of contributory negligence as a matter of law. “Fourth: The plaintiff has not sustained the burden of proving the negligence alleged, and that the damages sustained by the plaintiff was the proximate result of the blowing of the whistle. “The Court: I will take the motion under advisement. “Mr. Shields: I request that the following special question be submitted to the jury, your honor: “Q. Was the locomotive whistle sounded at the whistling post? “The Court: What do you say about this, Mr. Smurthwaite? “Mr. Smurthwaite: I object to it as immaterial. “The Court: It will be denied on the ground it does not call for a finding on a question of fact which is conclusive of the real issue involved in the case.” Later the trial judge gave the case to the jury in a carefully prepared written charge which had been submitted to the counsel for both parties, and had their approval. As already stated, a verdict for $2,250 was rendered in favor of the plaintiff. A motion was made for a new trial upon substantially the same grounds stated in the motion for a directed verdict. The motion was overruled. Counsel for the appellant now present the same questions that were presented to the trial court in the motions for a directed verdict and a new trial. [248] The first question we will consider is, Did the plaintiff make the case alleged in the declaration? Counsel say in their brief: “The declaration in this case alleges a cause of action against Paul King and Dudley Waters, as receivers of the Pere Marquette Railroad Company and alleges further that the Pere Marquette Railway Company, the defendant in this case, assumed the liabilities and obligations of ‘said railroad company that caused the injury complained of on account of which this suit is instituted.’ Not a single word of testimony was offered at the trial to prove that the Pere Marquette Railway Company, the defendant, assumed liability for this tort committed while the properties of the Pere Marquette Railroad Company were being operated by the receivers appointed by the United States Court.” This question was first presented in the notice attached to the plea of the general issue. Counsel for the appellee say: “On October 25, 1917, counsel for plaintiff served notice of the hearing of the motion for the determination, by the court, of the matters set forth in the defendant’s plea and notice of want of jurisdiction of this court to hear and determine this cause. “This motion came on to be heard on the 1st day of the next term of the circuit court for Manistee county, at which time the final decree of the district court of the United States, within and for the eastern district of Michigan, southern division, in the case of The American Brake & Shoe Foundry Company, plaintiff, v. The Pere Marquette Railroad Company, in Equity, No. 5467, dated January 29, 1917, was introduced in evidence, from which it appeared that on said 29th day of January, 1917, the said final decree was made and entered, in said Federal court, and by its terms the purchasers of the said railroad properties, who were incorporated as the present defendant corporation, assumed all liabilities of said defendant corporation, which arose after the date of said decree. “The circuit court for the county of Manistee, after [249] hearing the motion and the arguments of counsel on both sides, overruled the special' notice, which was in the nature of a plea in abatement under the former practice, held that the liability in this case, if any, was that of the defendant, and ordered the defendant to prepare for the trial of the cause. The proceedings and ruling of the court appear in the record at page 14. “It was thus adjudicated and determined by the trial court in this case, as a question of law that the cause of action set forth in the declaration occurred after the making and entering of said final decree, which expressly made the liability that of the defendant in this cause, and thus established as the law of this case.” This action was taken before the case came here the first time. If the point was well taken this court could not well reverse the case and direct a new trial as it did in fact. Did the court err in overruling the motion for a new trial because the verdict was against the great weight of the evidence? That question was not passed upon because of the condition of the record when the case was here before. It is properly presented now. In a motion of this character we must view the testimony in the light most favorable to the plaintiff. Benjamin v. McGraw, 208 Mich. 81. In giving his reasons for refusing a hew trial the judge said in part: “A new trial will be granted, where the verdict is plainly, manifestly, palpably, clearly, decidedly, or strongly against the evidence or the weight of evidence. Where the verdict is so strongly against the weight of the evidence as to shock the court’s sense of justice, or indicate that the jury were influenced by passion, prejudice or other improper motive, a new trial will presumably be granted in any jurisdiction. * * * Yet, it is generally held an invasion of the province of the jury to set aside a verdict that is not clearly or decidedly against the evidence, or the weight of the [250] evidence. It is usually held that a new trial should not be granted because the- verdict appears to be against the mere preponderance of the evidence, or merely because the trial judge would probably have reached a conclusion different from that of the jury. Where the evidence was so conflicting that different persons might honestly and intelligently have formed different conclusions therefrom; the verdict should stand. * * * See 29 Cyc. pp. 820-930; Rice v. Railway Co., 208 Mich. 142; In re McIntyre’s Estate, 160 Mich. 117; Fishleigh v. Railway, 205 Mich. 167; O’Dell v. Straith, 208 Mich. 509; Druck v. Antrim Lime Co., 177 Mich. 364, 374; Pachuczynski v. Railway, 202 Mich. 594. ‘The case of Fishleigh v. Railway, 205 Mich. 161, will be found a very instructive case upon the questions as to whether the verdict was against the weight of the evidence or excessive. Mr. Justice Fellows, in a very well considered opinion, circumscribed the rights and limitations of courts to substitute their judgment for that of the jury, the triers of the facts. ‡ ‡ “After a very careful reading of the authorities above cited, I am unable to say that the verdict should be disturbed as being against the weight of the evidence or as being excessive.” The case has been tried three times. If because of the case then presented by the record we found it our duty to set aside a directed verdict, we think it should not be said upon this record that the judge erred in not directing a verdict for the defendant. The other assignments of error have been examined but' will not be discussed. The case was carefully tried. It was submitted to the jury in a charge covering more than 16 printed pages in the record, which had the approval of counsel before it was given. We find no reversible error. The judgment is affirmed, with costs to the plaintiff. Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.