Culver v. South Haven & Eastern Railroad , 144 Mich. 254 ( 1906 )

Blair, J.

This case has been previously before this 'Court, and is reported in 138 Mich. 443. Counsel for defendant then contended:

“ (1) The verdict was against the overwhelming weight of the evidence.

“ (2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence.

“ (3) That the defendant did not receive a fair trial, owing to misconduct.

“ (4) That the learned trial court erred in ruling upon evidence.

“ (5) That the learned trial court erred in charging the jury.”

In disposing of the case this court said:

“ 1 and 2 may be considered together. Was the verdict overwhelmingly against the weight of evidence? Can we say, as a matter of law, Culver was guilty of contributory negligence? Without going into details, we may say an examination of the record satisfies us the plaintiff presented a ease making it the duty of the trial judge to submit it to'a jury under proper instructions.

“3. This assignment of error relates to the conduct of plaintiff’s counsel during the taking of testimony and while presenting the case to the jury. We have no hesitancy in saying that if the conduct of Mr. Tabor, about which complaint is made, was the only improper conduct of counsel, we should reverse the case, and direct a new trial. The misconduct, however, was not confined to counsel upon one side. We do not feel it our duty to attempt from this record of nearly 300 pages to decide who-of the counsel was most to blame. We do say the conduct of Mr. Tabor on one side and Mr. Maher on the other, was such as ought not to be permitted in any court of record anywhere. * * *

“4. Did the court err in the admission of evidence? As a rule, he did not, but in one instance we think an error was made, which may have made a difference with the final result. * * *

“5. Did the trial judge err in his charge to the jury? He gave all of defendant’s requests to charge which it was proper for him to give. . With one exception, we think the remaining portion of his charge was a correct statement of the law.”

Notwithstanding this final determination of the law of this case, counsel for defendant now raise precisely the same questions, with a few additional ones, upon a record of 772 pages, including 330 assignments of errors, and present their argument in a principal brief of 194 pages and a reply brief of 76 pages.

The error in the charge referred to in our previous opinion was corrected upon the present trial, and the only rulings of the court which are open to review upon this record are those relating to the admission of evidence and the conduct of counsel. We think the court erred in permitting the witness Johnson to testify to certain measurements made from a spike hole long after the accident, without any showing that the condition of the track was the same as at the time of the accident. As this testimony was directed towards one of the most important issues of fact in the case, we feel constrained to reverse the case because of its reception.

Notwithstanding what was said upon the subject in the former opinion, counsel on both sides traveled outside the legitimate bounds of argument. We trust that upon the next trial of this case the circuit judge will, if necessary, adopt strenuous means to compel counsel to keep within their proper field of argument.

We cannot consider the alleged errors of the court in overruling the motion for a new trial, for the reason that no exceptions were taken to such denial. Ginn v. Coal Co., 143 Mich. 84. The great bulk of this record and of the briefs of appellant is unnecessary in consequence of the prior decision of this court, and for that reason we shall limit appellant’s taxation of costs for record and briefs to 100 pages of record and 30 pages of brief.

The judgment is reversed, and a new trial granted, with costs to appellant as above limited.

McAlvay, Grant, Montgomery, and Moore, JJ., concurred.