Grand Rapids & Indiana Railroad v. Judson

Campbell, J:

Sait was brought to recover damages for injuries to a mare and colt in the village of Kalamazoo. One count claimed the injury to have arisen from neglect to keep up proper cattle guards. The other charged negligence in running the trains.

So far as the latter is concerned, the only testimony-in the case showed that the train in question' was run in the* usual way and with the usual precautions. As negligence cannot be presumed, but must be affirmatively proved, and as it cannot be presumptively negligent to run in the usual manner, without proof that such usual manner is itself improper (which can rarely happen), the defendant below was entitled to a charge that this cause of action was not made out.

TJpon the question of the cattle guard, there was some testimony not objected to and not stricken out which had some tendency to show the cattle guard was insufficient. Inasmuch as all the testimony of persons acquainted with the' construction of cattle guards swore to its sufficiency, and the evidence was very conclusive that the mare was caught. *508 in it in a way which showed it was very different from what some witnesses had represented it, there is reason to believe a more complete cross-examination would have .been desirable. But whatever may be our view of the weight or quality of this testimony, it is not clearly shown to have been based on guess-worlc and not on knowledge, and we cannot, therefore, hold that it was not open to the jury.

We do not think it error for a court to refuse to put the case to the jury upon the testimony of a single witness, or to decline instructing them that if they believe such a witness their finding should be for a particular party.— Westchester Fire Ins. Co. v. Earle, 33 Mich., 143 . It may not be error to give such instruction, but where there are several witnesses who are in conflict, there may be very good reasons why such a course might be unfair, and tend to withdraw attention from important facts. A' witness may bo right in part and wrong in part, and a jury may be of that opinion. Isolating his testimony would naturally lead to an idea that if they accepted any they were bound to receive all of it, and 'cases may be found where this would lead to injustice. If the court does not plainly see that no such difficulty can arise, it is much safer to charge on the law and upon proper hypotheses, than to put the case upon the testimony of a single witness.

The judgment must be reversed, with costs, and a' new trial granted.

The other Justices concurred.