96 Neb. 18 | Neb. | 1914
From a judgment of the district court for Lancaster county, on a verdict for $3,000 in favor of plaintiff in an action for personal injuries, defendant appeals.
Defendant is a corporation, and, among other things, is engaged in running a planing mill. In connection with its business it owns a four-story building and has in use therein a freight elevator. The petition alleges: That the defendant, through its foreman, ordered plaintiff, who was
The assignments of error argued in defendant’s brief will be considered in the order in which they are therein presented.
Misconduct of plaintiff and his attorney. When the jury were being impaneled, counsel for plaintiff, in examining the first juror, asked: “Mr. Fox, are you acquainted with the American Fidelity Company, or Williams & Walt, its agents?” An objection was made to this question on the ground that neither the Fidelity Company nor Williams & Walt are “parties to this suit, or connected therewith.” The objection was sustained, and no further question of that kind was asked by counsel for plaintiff in his voir dire examination of the jury. Defendant argues that, notwithstanding the fact that the objection was sustained, to ask the question and make it necessary for defendant to object was misconduct, entitling defendant to a new trial. We are unable to give our assent to this contention for two reasons: First, in our judgment, it could not have prejudiced the defendant with the jury; second, the error of the court was in not overruling the objection, as it should have done. Upon this point we concede that the authorities, cited from other states, are conflicting; but we think the correct rule is the one announced in Foley v. Cudahy Packing Co., 119 Ia. 246; Brusseau v. Lower Brick Co., 138 Ia. 245; Spoonick v. Backus-Brooks Co., 89 Minn. 354; Antletz v. Smith, 97 Minn. 217; Citizens Light, Heat & Power Co. v. Lee, 62 So. (Ala.) 199; Swift v. Platte, 68 Kan. (on rehearing) 10; Iroquois Furnace Co. v. McCrea, 191 Ill. 340. In Spoonick v. Bachus-Brooks Co., supra, it is said (p. 359) : “It is no answer to this to say that the insurance company is not named as a party to this action, for the bias of the juror is not to be determined by this fact. Nor is it an answer to say that counsel may protect his client by using a peremptory challenge. It is his right first to learn the facts, and he must do so to exercise intelligently his right to
It is further argued under this assignment that plaintiff’s counsel, “under the pretext of trying to get his client to testify to a statement made by Mr. Towle, general manager and treasurer of the defendant, as to defendant’s liability, sought through several pages of record, over repeated objections, to draw into the case an alleged statement of Mr. Towle that the defendant carried insurance against liability for such accidents, and he succeeded in doing so.” We do not think the record sustains the aspersions thus cast upon counsel. We think it shows, as stated by counsel in his brief, that he was earnestly endeavoring to show by his client, who had a very imperfect understanding of English, a conversation had with Mr. Towle after plaintiff was able to leave the hospital, in which Mr. Towle, the general manager, admitted the liability of his company, but gave as a reason for not paying plaintiff his damage that defendant’s employees were all insured, and for that reason defendant could not pay. The court ruled so constantly with the defendant throughout the examination of plaintiff by his counsel that about all counsel for plaintiff obtained was an answer to the question, “What did Mr. Towle say about the liability of the Curtis, Towle & Paine Company for that injury? A. He told me the people is all insured and so it is not right to pay me.” This answer was on motion stricken out. Thereupon counsel for plaintiff stated: “Q. Mr. Egner, we will try it again. Let the reporter read the question.”
Anderson v. Duckworth, 162 Mass. 251, holds: “In an action for personal injuries occasioned to the plaintiff while in the defendant’s employ, it is competent for the judge, in the exercise of his discretion, to admit in evidence the whole of a conversation offered by the plaintiff for the purpose of showing an admission of liability on the part of the defendant, and in which reference was made by him to the fact that he was insured against accidents, with a caution to the jury that the fact of insurance is not to be taken as an admission by the defendant, and then in the charge, after saying again that the insurance is not to be regarded as an admission, to leave it to the jury to find, under suitable instructions, what the true import of the conversation was.”
It is next urged that counsel for plaintiff was guilty of misconduct in the examination of Doctor Hummel, called as a witness for plaintiff. The record shows that after the injury Doctor Hummel was called to see plaintiff at his
It is further argued under this assignment that counsel for plaintiff in his closing argument stated to the jury, in substance, that the defendant had not taken much interest in the case, and that, in fact, it wanted the plaintiff to-get a big verdict against it. Exception was taken to this statement, and the jury were instructed not to consider the remark. In its ruling the court went to the limit in sustaining defendant’s objections, and after the trial was over it evidently did not consider that what had transpired could have prejudiced the defendant with the jury, or it would have granted a new trial. The trial court, who saw and heard what transpired, was not able to discover any prejudice, and we are not able to discern any.
The next assignment is that the court erred in permitting plaintiff to testify, over defendant’s objection, that he had a wife and children. This point is covered by two .questions and answers: “Q. You got a family? A. Yes, sir. Q;. A wife and children? A. Yes, sir; wife and four children — -four girls.” -Counsel for plaintiff admits that, while it would have been proper to have excluded this evidence, it was not error to admit it. Conceding that, strictly speaking, it was error to admit it, it affords no ground for reversal. When we consider the serious injury which plaintiff had received, that he was but 37 years of age, and the amount of the verdict returned by the jury, it is very apparent that no extra allowance was made on account of plaintiff’s wife or children.
It is next urged that the court erred in refusing to give instructions 2, 3, 4, 5, 6, 7, 10 and 12, requested by de
The next objection is that the court erred in giving instructions 5, 7 and 11. These instructions are all three so •clearly in line with the rule in cases of this character, repeatedly sustained by this court, that we shall not take the time to consider them. They were properly given.
The last assignment is that the verdict is contrary to the evidence. The court in its instructions withdrew from the jury all of plaintiff’s allegations of negligence except: '“(a) The allegation of plaintiff that the defendant was negligent in directing the plaintiff to go into said elevator pit and do the work that he was there directed to do, without notifying the plaintiff that the elevator was unfastened; and (b) the further allegation that the defendant was negligent in inviting the plaintiff into said elevator pit for the purpose of doing what the evidence discloses he was directed to do, without fastening the elevator.” The evidence is uncontradicted that the elevator was not fastened. The court would therefore have been warranted in instructing the jury that that allegation had been established. The evidence that plaintiff was sent into the pit, without notifying him that the elevator was not fastened, is conflicting, but it is sufficient to sustain the verdict of the jury.
Finding no prejudicial error in the record, the judgment of the district court is
Affirmed.