Gregory v. Detroit United Railway , 138 Mich. 368 ( 1904 )

Gbant, J.

(after stating the facts). 1. The first assignment of error arises upon the admission of testimony. Evidence was received, under objections and exception, to show prior accidents of a similar character at, this same place. Such testimony is only admissible to show notice and knowledge of the defects. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537; Corcoran v. City of Detroit, 95 Mich. 84; Alberts v. Village of Vernon, 96 Mich. 549.

Defendant’s counsel upon the trial admitted that the condition of the rails and street at this point was the same as it had been from the 1st of December previous. The sole question, therefore, was the condition of the street, and whether its condition was negligence. Proof of prior accidents was immaterial, and would naturally tend t.o prejudice the defendant.

2. Error is assigned upon the following instruction:

“ If you believe that any of the witnesses testified under a fear of losing his employment, or a desire to avoid -censure or a fear of offending, or a desire to please his employer, then such fact may be taken into consideration in determining the degree of weight which ought to be .given to the testimony of such witnesses.”

This charge could have been applicable to none other than the witnesses for the defendant. We find nothing .in this record to justify this instruction. The language is identical in substance with that which was condemned by this court in Marquette, etc., E. Co. v. Kirkwood, 45 Mich. 51. In that case the court instructed the jury that, if they found it necessary to consider the testimony given by the agents and employés of the railroad company, they should bear in mind the interest they have in protecting their company and shielding themselves from blame. The reason for condemning such instructions is found on pages 53, 54, and we need not restate it here. 'The effect of such an instruction is apparent in this case, for the overwhelming weight of the evidence on the part •of the employés of the defendant, who put down the planking at this place and who examined it, shows that the planking was flush with the main rails; and, if it was, it is conceded that there is no liability. Possibly counsel may not commit error in criticising witnesses upon this ground, but that is a very different thing from the judge calling attention to it in the language of this instruction. The effect of such an instruction, standing alone, is to permit the jury to set aside the testimony of the most reliable and truthful witnesses simply because they are employés. This instruction was not coupled with any caution that the jury would not be justified in drawing unfair inferences simply because they were employés. This instruction is very different from that given in McDonell v. Boom Co., 71 Mich. 61, 66, and Lovely v. Railroad Co., 137 Mich. 653.

In order to justify the above instruction, there must be something in the testimony itself or in the manner of the witness to justify the conclusion that the witness’ testimony is tainted by fear of losing his employment, of offending, or a desire to avoid censure, or to please his employer. In cases where corporations or individuals doing a large business are litigants, the great majority of the witnesses are employes, and, when instructions of this kind are deemed proper, they should -be coupled with the caution above indicated.

In Lovely v. Railroad Co. this court cautioned the jury that “no inference unfair to men should be drawn because they are in the employ of the railroad company.”

3. Defendant made a motion for a new trial on the ground that the verdict was contrary to the clear weight of the evidence. None of the witnesses for the plaintiff who testified as to whether there was any planking there, or as to its condition if there was, made such an examination as entitled their testimony to much weight. On the contrary, eight for the defendant testified to a careful examination, and that the planking was flush with the top of the rails and in good condition. Two of these witnesses were village officers. The case falls within Cole v. Railway Co., 132 Mich. 122; Brassel v. Railway Co., 101 Mich. 5; Whipple v. Railroad Co., 130 Mich. 460. The court should have granted the motion.

Judgment reversed, and new trial ordered.

The other Justices concurred.