101 Minn. 314 | Minn. | 1907
Plaintiff and respondent, employed as a brakeman for defendant and appellant railway company, brought suit to recover injuries caused by a fall when he was attempting to- jump from the engine on which he was riding as it was about to collide with a train on the track on which it was running. It is conceded that there was sufficient evidence of negligence, and that it was a question for the jury to determine whether or not plaintiff was justified in jumping from the engine. The jury returned a verdict for $1,775. The appeal was taken from the order denying a new trial.
The preliminary question is whether or not the damages awarded by the jury were excessive and were given under the influence of prejudice
While plaintiff’s expert testimony was substantially impeached in a number of respects, and especially as to injury to glands, and while there were no clear objective evidences of internal injury, the trial judge refused to grant a new trial. The verdict was large under the circumstances, but we think we would not be justified in reversing the ruling of the trial court in this regard.
The second question in the case concerns the propriety of the reception by the court of certain evidence. When the case was called for trial the plaintiff was put on the stand, and was immediately asked the following questions and gave the following answers:
Q. You are the plaintiff in this action ? A. Yes, sir. Q. What do you call your home? A. Duluth, Minn. Q. You are a married man? A. Yes, sir. Q. Wife and two children? (Objected to as irrelevant and immaterial. Court: Overruled. Mr. Hadley: Exception.) A. Yes, sir. Q. Your wife and two children are now living where? (Objected to as irrelevant and immaterial. Court: Overruled.) A. At my wife’s parents. Q. Where is that? A. In the southern part of this state. Q. How old are you? A. Thirty-one years.
It is plain that these were preliminary questions. Such matters of inducement conventionally precede testimony as to the actual occur
While it is true that in this case the ages of the children were not given, the trial judge, if a sufficiently.specific objection had been raised, should have excluded the testimony. This court, in conformity with the universal trend of opinion, has refused to set aside a verdict because of the reception of improper evidence despite indefinite, general, or misleading objections. Graves v. Bonness, 97 Minn. 278, 107 N. W. 163. It may well be doubted whether in this case the exception was-sufficiently definite. It did not point out to the court whether the basis of the objection was to the remoteness of the matter of inducement, or to its impropriety as affecting the assessment of damages. We-think, however, that the essential question here presented is, not whether the ruling was theoretical error, but whether it was prejudicial error.
In Keyes v. Minneapolis & St. L. Ry. Co., 36 Minn. 290, 294, 30 N. W. 888, plaintiff was allowed to testify that he had suffered the greatest: anxiety, not for himself, but for his wife and daughter. The court held that this was error, but, per Judge Mitchell, said: “While we fully appreciate the danger of assuming that the admission of incompetent evidence is not prejudicial, yet in this case it is hardly conceivable-that the mere statement that plaintiff felt this anxiety for the safety of his wife and daughter could have had any appreciable influence upon
In the case at bar, there was no express attempt to show anxiety as .a part of damages recoverable, nor to connect this testimony with their assessment; nor does it appear that it was employed in any wise for their enhancement. The only prejudice would have been indirect, uncertain, and speculative. The plaintiff was fairly entitled to some ver•dict. The trial court charged correctly as to the measure of his compensation. The jury awarded a sum which, as has hereinbefore been .set forth, it properly refused to disturb. We think the error, if any, -was without prejudice.
Order affirmed.
The question with reference -to where the children were living was -neither relevant nor material for any purpose whatever, the objection was specific and sufficient, and the court erred in overruling it; but we concur in the view that it was error without prejudice.