Citation Numbers: 55 Mich. 150
Judges: Cooley, Justiees
Filed Date: 10/22/1884
Status: Precedential
Modified Date: 9/8/2022
Plaintiff brought suit in trespass, and recovered against the defendants jointly a judgment of six hundred dollars.
The principal facts in the case are the, following : On the-afternoon of November 22, 1882, plaintiff, who was driving a single carriage from Dowagiac in the direction of Lagrange, overtook the defendants, each of whom was driving a two-horse farm wagon in the same direction. These two teams belonged to Lilly; and Engle, who had been but was not then
When Lilly was on the stand as a witness on his own behalf, he was asked on cross-examination, whether he had ever been arrested charged with crime? He answered that he had been, twice. Plaintiff’s counsel was allowed to follow up this question and show that he was once charged with murder, convicted, the case removed to the Supreme Court, and the verdict set aside, then tried again and acquitted. [38 Mich. 270.] He was again tried on a charge of assault with intent to kill, and convicted, and the verdict set aside in the Supreme Court. [43 Mich. 521.] Here the inquiry into these matters was stopped. The defendant’s counsel moved to strike out the evidence, but the court denied the motion.
In general a trial court must be allowed liberal discretion in determining how far the antecedents of witnesses may be
But we think there were some errors committed in the charge of the court.
Among other things the jury were instructed that, “in determining whether Lilly directed, advised or encouraged the trespass, the jury should consider all the circumstances shown by the testimony; whether he approved of and defended the act of Engle after the collision; the relation of the two
Again, there was evidence that Engle had before run the horses in the highway, and also that when at Dowagiac he had drank some gin, though it does not appear to have been claimed that he was intoxicated. Commenting upon the evidence the judge said : “ Now if he [Lilly] didn’t have confidence in Engle to manage the horses himself, and had to give him directions, and in giving him directions he frightened the horses, and in consequence of that the horses ran, and by that means run into Pigott, then, gentlemen, his act there assisted in procuring the trespass. You recollect what Engle says about his hallooing to him, and his turning around, and the horses, starting as he turned round; it is for you to say whether that started the horses; if the horses started in consequence of the hallooing of Lilly to Engle, then his act contributed to the running of the horses; and if it did, then if Engle is liable Lilly is liable also.”
The case which the plaintiff had attempted to make out against Engle, and which he now claims that he did make out, was that he intentionally drove against the carriage of the plaintiff and caused the injury complained of. The effect of this instruction is — to state it shortly- — -that if Lilly made an effort to prevent this trespass, but in so doing unintentionally contributed to the starting of the horses, he is jointly liable for the trespass with the party intentionally committing it. This .is equivalent to making an effort to prevent a trespass
If, on the other hand, the plaintiff were to plant his claim to recovery upon the ground of negligence in both Engle and Lilly, the charge would still be erroneous. It has not been claimed in the case that Engle was a man incompetent to manage and drive horses; nor is there ground for claiming that he was at the time intoxicated. What is claimed is that he had previously shown an inclination to race with horses on the highway, and that Lilly knew the fact and should not have trusted him with one of his teams, especially as he had taken a dram of gin, which might have increased the dispo-' sition to race. But having trusted him with a team, if he deemedo it necessary afterwards to interfere to prevent mischief, and in doing so the horses were started and did mischief, Lilly is chargeable upon the facts as for personal negligence.
Presenting the case in this aspect, it becomes necessary to see what the act is on the part of Lilly, which can be treated as an act of negligence. Certainly the mere act of trusting the team to a competent man could not be deemed negligent, even though he was a man who sometimes took a dram or sometimes ran horses on the street. He had a right to suppose that the man would conduct himself properly in his service, especially when he was driving in his own company. There must be something besides this to constitute legal fault on the part of Lilly. But now, as they are driving along the highway, the plaintiff comes up, driving rapidly, and proposes to pass both Lilly and Engle, and Lilly, as he claims, fearing that Engle may yield to the temptation to run, calls out to him a warning against it. Now, it is said, the call may have startled the horses, and therefore Lilly should be held liable. This makes the call of warning, given for the very purpose of preventing the mischief which actually resulted, an act of negligence, and proposes to charge Lilly as a wrong-doer for trying to prevent a trespass. No legal principle has been called to our attention which would sustain such a proposition. If to call out in a loud voice
The jndgment must be reversed and a new trial ordered.