"{\"id\": \"1500360\", \"name\": \"CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.\", \"name_abbreviation\": \"Culver v. South Haven & Eastern Railroad\", \"decision_date\": \"1906-05-24\", \"docket_number\": \"Docket No. 120; Docket No. 3\", \"first_page\": \"254\", \"last_page\": \"260\", \"citations\": \"144 Mich. 254\", \"volume\": \"144\", \"reporter\": \"Michigan Reports\", \"court\": \"Michigan Supreme Court\", \"jurisdiction\": \"Michigan\", \"last_updated\": \"2021-08-10T20:36:09.499556+00:00\", \"provenance\": \"CAP\", \"judges\": \"McAlvay, Grant, Montgomery, and Moore, JJ., concurred.\", \"parties\": \"CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.\", \"head_matter\": \"CULVER v. SOUTH HAVEN & EASTERN RAILROAD CO.\\n1. Appeal and Error \\u2014 Decision on Review \\u2014 Former Review-Law of the Case.\\nThe decision of the court on error is the law of the case for all subsequent reviews of the same case.\\n3. Same \\u2014 Review\\u2014Questions Considered \\u2014 Exceptions\\u2014Necessity.\\nAlleged error of the trial court in overruling a motion for new trial cannot be considered in the absence of exception to the ruling.\\n3. Costs \\u2014 Appeal\\u2014Prolix Record and Brief.\\nWhere the record and brief on error are unnecessarily long because of the attempt of plaintiff in error to raise questions decided upon a former review of the case, plaintiff in error will be permitted on reversal to tax as costs the expense of printing only such parts of the record and brief as the court deems necessary to raise the questions open for review.\\non rehearing.\\n1. Master and Servant \\u2014 Personal Injuries \\u2014 Evidence \\u2014Question for Jury.\\nIn an action against a railroad company for injuries to a switeh man, evidence considered, and held, to present a question for the jury whether the place on the track where a witness made certain measurements was the place where plaintiff was injured. ^ j.\\n\\u20182. Same \\u2014Evidence\\u2014Admissibility \\u2014Conditions at Place op Injury.\\nPlaintiff claiming to have received his injury because of his having caught his shoe between a projecting fish-plate bolt anda spike in a tie, testimony of a witness as to measurements made from the spike hole after the accident, is not objectionable on the ground that the conditions were changed, as for the purposes of measurement they were the same.\\nError to Yan Bur\\u00e9n; Carr, J.\\nSubmitted February 13, 1906.\\n(Docket No. 120.)\\n(Docket No. 3.)\\nDecided May 24, 1906.\\nMotion for rehearing granted July 24, 1906.\\nReargued October 4, 1906.\\nFormer opinion reversed October 29, 1906.\\nCase by William Culver against the South Haven & Eastern Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.\\nAffirmed.\\nW. J. Barnard (Edward Maher, of counsel), for .appellant.\\nThomas J. Cavanaugh and L. A. Tabor, for appellee.\\nRehearing denied December 17, 1906.\", \"word_count\": \"2005\", \"char_count\": \"11213\", \"text\": \"Blair, J.\\nThis case has been previously before this 'Court, and is reported in 138 Mich. 443. Counsel for defendant then contended:\\n\\\" (1) The verdict was against the overwhelming weight of the evidence.\\n\\\" (2) That Culver was not in the exercise of ordinary care, being guilty of contributory negligence.\\n\\\" (3) That the defendant did not receive a fair trial, owing to misconduct.\\n\\\" (4) That the learned trial court erred in ruling upon evidence.\\n\\\" (5) That the learned trial court erred in charging the jury.\\\"\\nIn disposing of the case this court said:\\n\\\" 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.\\n\\\"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.\\n\\\"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.\\n\\\"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.\\\"\\nNotwithstanding 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.\\nThe 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 meas urements 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.\\nNotwithstanding 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.\\nWe 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.\\nThe judgment is reversed, and a new trial granted, with costs to appellant as above limited.\\nMcAlvay, Grant, Montgomery, and Moore, JJ., concurred.\"}"