Gardner v. Russell , 211 Mich. 647 ( 1920 )

Brooke, J.

(after stating the facts). The first objection urged against the charge as given is that the learned trial judge unduly emphasized by repetition the fact that plaintiff could only recover if he established by a preponderance of the evidence the fact that he himself was free from contributory negligence and that the accident was caused through the negligence of the defendant. While this statement is (perhaps needlessly) reiterated in the charge, it is a correct statement of the law and we do not think its repetition was prejudicial to plaintiff.

It is next asserted that the use of the language, “If you arrive at the point when damages are assessed,” gave the jury to understand that it was very questionable if they would ever arrive at that point. The language used is very commonly employed in charges where, as in the case at bar, the facts are in dispute, and is not subject to just criticism.

It is next asserted that the use of the following language constitutes reversible error:

“Now, a preponderance of evidence does not mean number of witnesses. It means that evidence, which taken in connection with your experience as honest and experienced and intelligent men, convinces you of its truthfulness.”

To this the court later added:

“It is not the province of the court to discuss the testimony; that is, for you. It is not the province of the court to tell you what the court thinks in regard to the testimony of any one person. You take the case as it comes to you with the evidence that comes to you from the witness stand and then you determine whether under all the circumstances of the case whether the plaintiff has proved his claim.”

We think, taken as a whole, the charge of the court upon this point is within the line of our own authorities. See Strand v. Railway Co., 67 Mich. 380; Dupuis v. Traction Co., 146 Mich. 151. Here the court did not instruct the jury that the number of witnesses had nothing to do with the preponderance of evidence. He simply stated that preponderance of evidence did not mean “number of witnesses.” ,

It is next urged that the court erred in charging the jury that—

“Automobiles, autocycles, and bicycles and horses and wagons and pedestrians all have certain rights in the streets. ■ The right of no one vehicle is superior to that of another, but all men must conform to the law of the road.”

The city ordinance touching the rights of the parties had been introduced and read in evidence and the jury were by this instruction advised that it was the duty of the parties to conform to that law. While the court might, with propriety, have called the attention of the jury to the ordinance, the obligation and duty of the defendant thereunder would depend entirely upon whether defendant reached the intersection before the plaintiff, as claimed by him, or after the plaintiff, as claimed by the plaintiff; and, therefore, the general instruction that "all men must conform to the law of the road” would seem to be sufficient.

It is urged that the court erred in charging the jury that—

"Negligence is the lack of conduct that is thoughtful and lawful.”

Standing alone, this definition of negligence would be open to criticism, but in the same connection the court charged:

“The law requires from each person that degree of care and prudence which ordinarily a prudent man would exercise.”

And again:

"And what that care is which an ordinarily prudent person should use is for you to determine under the circumstances of the case and the evidence as it comes before you.”

The disputed questions of fact were few and the witnesses but three. We are of the opinion that, taken in its entirety, the charge fairly presented the disputed questions to the jury.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.