72 Neb. 736 | Neb. | 1904
This is an action by a married woman, in her own behalf and as next friend of her two minor children, to recover damages from the defendants, a saloon keeper, and the surety on his bond, for having incapacitated the husband and father by causing his intoxication, and for personal injuries resulting therefrom. There is sufficient evidence in the record to justify the jury in having found the following facts embraced within the issues made by the pleading, and they will therefore be stated as though not in dispute. There was a verdict for the plaintiffs for $2,000, from a judgment on which the defendants prosecute error.
The husband was a man about 51 years of age, who Avas afflicted with congenital curvature of the spine, bijt was otherwise in good health, or, at least, sufficiently so to earn, and he did earn until the happening of the event complained of, sufficient money to support his family in the degree of comfort usual or customary in his station in life, which was that of a common laborer. He Avas not accustomed to steady employment, but earned his livelihood by doing odd and miscellaneous jobs such as are ob-
The first assignment of error is that the court excused a juror draAvn as a talesman upon the objection that the
It is secondly assigned for error that a talesman who was called, and who served, in substitution for the one above mentioned, was summoned by a bailiff who Avas afterAvards sworn as a witness for the plaintiff; but as no complaint is made Avith reference to the competency of this juror, and as it does not appear that the bailiff acted corruptly or Avas interested in the suit, the fact does not appear to be material.
It is next complained that the damages are excessive, appearing to haAre been given under the influence of passion or prejudice, the ground of the complaint being, in substance, that Babb was before the happening of the injury a physical and moral Avreck from some or all of the causes, other than the fall, above detailed, and that his ability and usefulness as a Avage earner had ceased to be of any appreciable value or, at all events, Avere of very much less value than the sum aAvarded. But this is not the Avliole of the story. HoAvever small may have been his earning-capacity before the injury, he was not before that time, as he has been since and apparently will continue to be, a confirmed invalid and a burden upon his wife and children for his OAvn subsistence and for nursing and medical attendance. These and like circumstances would have been properly taken into account by the jury, and doubtless Avere so, in determining the amount of the recovery. That their consequences Avere and are largely conjectural goes
There is one other circumstance of the trial, disclosed by the record and complained of by the plaintiffs in error, which tends to support the complaint of the plaintiffs in error in this regard, and which, if we regarded the damages allowed as in any considerable degree too liberal in amount, would in our opinion require a reversal. Babb was produced and sworn as a witness for the plaintiffs at the trial, and in the course of his examination in chief the following comedy was enacted. We quote from the brief of the plaintiff in error, the correctness of which, in this particular, is not disputed:
Q. Now, Mr. Babb, I wish you would get down here, if you can walk, and show how you walk, and if not, you—
The counsel for the plaintiffs at this time ask the witness to present his right arm and leg, and in fact his whole person to the jury for examination, and exhibit to them his capability to walk and handle articles with his hands. To this request the defendants object for the reason that it is not in the form of a question, being an exhibition to the jury, and is not sufficiently defined as to give counsel • for the defense an opportunity to know what to expect as a result. Objection overruled: To which ruling the defendants except. The witness here came down off the witness stand without assistance, and with the assistance of his wife took off his coat and rolled up his sleeve.
Q. Raise up that arm, if you can, Mr. Babb. (Witness raises his arm up partially.)
Q. Take hold of that chair. (Witness endeavors to raise chair, and moves it a little.)
Q. Is that the best you can do with it?
A. Yes, sir. (Witness turns up his sleeve on left arm.)
Q. You may state if there is any feeling in this left arm.
*741 A. Not to amount to, anything. I can feel the touch, but cannot feel a pin if stuck in.
Q. Can you lift with that arm?
A. Yes, sir.
To this procedure the defendants interposed an objection on the ground of improper examination of the witness, which was overruled.
It is a too well settled rule in this court to call for further discussion that the plaintiff in an action for damages for personal injuries may be permitted to exhibit to the jury, if he can do so, the contusions and wounds of which they consist. Such is also, we think, the practice in most courts in this country. Louisville, N. A. & C. R. Co. v. Wood, 113 Ind. 544; Citizens’ Street R. Co. v. Willoeby. 134 Ind. 563; Schroeder v. Chicago, R. I. & P. R. Co., 47 Ia. 375. But in Hatfield v. St. Paul & D. R. Co., 33 Minn. 130, it was held that it was not error by the trial court to refuse to permit the plaintiff in such an action to walk across the court room floor in the presence of the jury for the purpose of demonstrating the degree of her lameness. Manifestly there is no means of ascertaining in the case of such an exhibition whether the apparent disability is real or simulated or to what extent it is either, ■ or, in other.words, as respects the movements made by the witness, there is no opportunity for cross-examination, and the practice, by well trained witnesses with some histrionic talent, might be the cause of gross impositions upon both the court and the jury. Neither can it ever be necessary to the due administration of justice; and, the nature and extent of the injuries having been proved, it can have no object but to stir the emotions of the jury preparatory to an appeal to their passions and prejudices. But in this case, as we have said, the verdict is not such as to indicate to us that the passions of the jury were so influenced, and we are of opinion, therefore, that the error was without prejudice.
The liquor license bond was executed by the plaintiff in,error, the United States Fidelity and Guaranty Com
There are numerous other errors assigned having reference to the giving and refusal of instructions and to the. conformity of the verdict thereto, and to rulings upon the admission and rejection of evidence, hut we think that they are sufficiently treated of, in a general way, in the foregoing discussion, and that nothing of importance would be gained by setting them forth here in detail. Upon a consideration of the whole record, we are of opinion that it discloses no reversible error, and recommend that the judgment of the district court be affirmed.
For the reasons stated in the foregoing-opinion, it is ordered that the judgment of the district court be
Affirmed.