Butler v. Detroit, Ypsilanti & Ann Arbor Railway , 131 Mich. 617 ( 1902 )

Moore, J.

September 16,1900, plaintiff was riding on the rear platform of one of defendant’s cars. Upon the platform was one Miller. It is the claim of the plaintiff that Miller and the conductor got into an altercation, when the conductor called the motorman to his aid, and that not only Miller, but the plaintiff, was thrown off the car, and plaintiff received injuries for which this action was brought. It was the claim of the defendant that it was Miller, and not its employés, who pulled the plaintiff from the platform. The jury returned a verdict for $1,900. Amotion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

Complaint is made of the admission of certain testimony. If the testimony was inadmissible, the error was cured by the court’s instructing the jurors they were to disregard the testimony objected to.

The judge was requested by defendant to charge.

“ There is no evidence in this case that the injuries claimed to have been received by the plaintiff are permanent.” He did not do so, and failed to call the attention of the jury to that subject at all. In disposing of the motion for a new trial, the judge said:

“There is an inadvertence, possibly, in not precisely charging that there was no evidence of permanent injury. The permanent injury, if any, in this case, was left rather doubtful, — too doubtful, alone, on which to found a verdict. I had supposed that this point was clearly covered, and that the defendant road certainly had every element in the charge in their favor, to cover and include their theory perfectly and beyond question.”

The fact that the omission was due to an inadvertence does not remedy the harm done. Under the facts disclosed by the record, the defendant was entitled to this request, especially if counsel made the argument to the jury upon that subject which it-is alleged he made.

Objection is made to part of the charge bearing upon the question of how the jurors should arrive at their verdict. The language used was not very definite, and is open to the charge of being ambiguous; but, as for other reasons the case is to be reversed, we will not decide whether the language used was reversible error, as it.will not be repeated.

The other assignments of error have been considered. They are either not well taken, or the action of which complaint is made is not likely to occur again.

The judgment is reversed, and a new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred.