Galloway v. Detroit United Railway

134 N.W. 10, 168 Mich. 343, 1912 Mich. LEXIS 532

Opinion

Brooke, J.

(after stating the facts). Counsel for defendant frankly concede that in instructing the jury that plaintiff could not recover unless he showed that the driver of the taxicab acted without negligence, and that his injuries were due solely to the negligence of the defendant, the learned circuit judge was in error.

It seems now to be settled, in this State at least, that, where one suffers an injury through the concurrent negligence of two common carriers, the negligence of the one upon whose conveyance the injured person is a passenger cannot be imputed to the passenger so as to bar his recovery-against the other. Cuddy v. Horn, 46 Mich. 596 (10 N. W. 32, 41 Am. Rep. 178); Little v. Hackett, 116 U. S. 366 (6 Sup. Ct. 391).

But it is urged on behalf of defendant that the verdict should not be disturbed because (it is claimed) the court should have granted defendant’s motion for a directed verdict upon the ground that plaintiff had failed to show any negligence on the part of the defendant which contributed to cause the injury to plaintiff.

Plaintiff produced evidence which (if true) tended to show that defendant by its agents stopped its car and suddenly, without warning, backed it up the Y across the northerly portion of Jefferson avenue, at a time when the conductor, instead of being upon the back end of the car and maintaining a proper lookout, was in the forward portion of the car where he could not see the approaching taxicab. This testimony was sharply contradicted by witnesses on behalf of defendant, but this is not a proper occasion to discuss the weight of the evidence. To entitle the defendant to a directed verdict, there must have been no evidence tending to show its culpability in the premises. We are unable to agree with counsel for defendant in his contention.

The judgment must be reversed, and a new trial ordered.

Steere, Mo Alva y, Blair, and Bird, JJ., concurred.