"A. I started my horse, I kept on looking, and kind of that way (indicating) and just stopped looking and listening; as I got on the track I was still looking and listening, and I caught sight of that other car; I bent over looking, and I just got through looking there (indicating) when I saw this other car right at the side of me. I had started to look back the other way then. I just got through looking towards the north, and started to look towards the south again as I got to the track, and just as I got to the track, I seen it was on top of me." Later, the plaintiff was recalled and stated that he wanted "to make some corrections" of his cross-examination. Those corrections related to the speed of the horse, which he changed to about 5 miles an hour; he also corrected his former testimony as to the distance he could see south at 30 feet from the track, testifying: "At 30 feet, on that day I could not see over 150 feet; on a clear day I could not see over 300 or 400 feet." Again he testified that he could see up the track about 200 feet. Plaintiff's testimony relating to the direction and way in which he looked after leaving the point 30 feet from the track remained unchanged. But one just conclusion can be reached from his testimony: Plaintiff was expecting his father on a car coming from the north, and during all the time that he was approaching the track from the point 30 feet east of the track, until the car was upon him, he was looking in a northerly direction, and never once looked towards the south, the direction from which the work train was approaching, with which he collided. Had he looked south he would have seen the cars, for, according to the undisputed evidence, they were at that time within the range of his vision. We agree with counsel for appellant that upon the subject of the contributory negligence of the plaintiff, the question "must be determined largely from the testimony of the plaintiff." The ground upon which the trial court directed the verdict is clearly stated in its charge as follows: "A view to his left any time after he passed the tree would have disclosed the fact that this car was coming. He says he could have seen 150 or 175 to 200 feet to the left if he had looked, could have seen it if he had looked. It seems to me that there cannot be any question about it, but that his failure to look -and he said he had his horse entirely under control, could have stopped at any time or place from the 30 feet up to the track, that he could have seen the car within 175 feet south of the road if he had lookedit seems to me to be clearly an admitted fact of negligence to fail to look." In treating that question as one of law, the trial court referred to the case of Bray v. Traction Co., 191 Mich. 435, and quoted the following language of Justice MOORE, who wrote the opinion in that case: "On his [plaintiff's] cross-examination he made it even more apparent that he looked but once, and that, if he had looked just before going upon the track, when there was an opportunity to do so, he could have seen his danger in time to avoid it. Under the version given by the plaintiff of the occurrence, we think the trial court was justified in directing a verdict, for the reason given by the following authorities." See cases there cited; also Congdon v. Traction Co., 199 Mich. 564. We are left in no doubt concerning the manner in which the plaintiff was injured. As was said by Chief Justice OSTRANDER in Knickerbocker v. Railway Co., 167 Mich. 596, 602, in speaking of an infant ten years of age killed at a railroad crossing, we may say here: "His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it, if 204-Mich.-15. seasonably discovered, cannot be questioned. He did not discover the actual danger. Under the circumstances, he was chargeable with some degree of care for his own safety, and it does not appear that he exercised any care. The jury should have been so instructed." See, also, Mollica v. Railroad Co., 170 Mich. 96 (L. R. A. 1917F, 118), where a boy under ten years of age was held guilty of contributory negligence. The presence of the storm called for increased vigilance and care. Some of the language of the trial court, in its charge directing the verdict, is criticised by appellant's counsel. Upon this subject it is sufficient to say that affirmance of the judgment does not imply agreement with all that was said to the jury in directing the verdict. Schneider v. C. H. Little Co., 200 Mich. 374; Lewis v. Brick Co., 164 Mich. 489, 501. We find no reversible error in the rulings of the court relating to the admission of evidence. In our opinion the court did not err in directing a verdict for the defendant, for the reason stated, and the judgment below is affirmed. OSTRANDER, C. J., and STEERE and BROOKE, JJ., concurred with STONE, J. MOORE, J. (dissenting). I think the testimony presented a question of fact which should have been submitted to the jury. BIRD, FELLOWs, and KUHN, JJ., concurred with MOORE, J. GARASZEWSKI v. WURM. 1. EVIDENCE-STENOGRAPHER'S NOTES ADMISSIBILITY NESS-HEARSAY. - GENUINE A stenographer's notes of testimony at a former trial are not original evidence, being neither read over to, nor signed by, the witness, and have no greater efficacy than those taken by any other person, and in the absence of the affidavit of the stenographer or other evidence of the accuracy and genuineness of such alleged testimony, it is merely hearsay. 2. NEW TRIAL-NEWLY-DISCOVERED EVIDENCE-CUMULATIVE. Where alleged newly-discovered evidence would, at most, be merely cumulative, a motion for a new trial was properly denied. 3. SAME. A motion for a new trial upon the ground of newly-discovered evidence is not regarded with favor, the policy of the law being to require of parties care, diligence, and vigilance in securing and presenting evidence. 4. TRIAL-INSTRUCTIONS-EVIDENCE. In an action for personal injuries caused by defendant's motor truck in April, 1916, a requested instruction that if plaintiff was injured in April or March, 1917, and concealed that fact, it might be considered in determining the weight of his testimony, was properly refused, there being no evidence that he was injured at that time. 5. SAME-INSTRUCTIONS-DAMAGES. In such action, where defendant claimed that plaintiff was suffering from previous injuries, an instruction that previous injuries had no bearing on the case unless they were of the same character, was not erroneous, it being evident that the court used the word "character" in the sense of kind, sort, or nature. Error to Wayne; Dingeman, J. Submitted October 9, 1918. (Docket No. 19.) Decided December 27, 1918. Case by Andrew Garaszewski against Otto A. Wurm for personal injuries. Judgment for plaintiff. Defendant brings error. Affirmed. Guy W. Moore and Hal P. Wilson, for appellant. STONE, J. By his declaration and testimony the plaintiff herein claims that he was injured on April 4, 1916, by a motor truck belonging to the defendant, and being driven by his servant; that at the time the plaintiff was walking on the public sidewalk on the north side of Hendric street, at or near the intersection of the East Grand boulevard and Hendric street, in the city of Detroit; that the motor truck was operated in such a careless and negligent manner that it was steered and driven from the roadway over the curbstone and onto the public sidewalk, striking the plaintiff with great force and violence, before he had time to reach a place of safety, knocking him down and crushing his left foot and injuring his left knee; that he was severely and permanently injured in his left foot and ankle; that by reason of the said injury he was for a number of weeks laid up and kept from his work, which was that of a body-maker in the employment of the Packard Motor Company; that he was unable to earn his former wages by reason of the injury; that he suffered great pain, and had incurred a doctor's bill, and had by reason of said injury a stiff ankle. The plaintiff is a Pole, and he testified through an interpreter. His testimony was corroborated by other witnesses who claimed to have been present at the time of the injury. There was also medical testimony as to the nature and permanency of the injury. On behalf of the defendant, the driver of the truck testified that the plaintiff was not hit at all, or injured in any manner. The trial took place in May, 1918. |