101 Minn. 40 | Minn. | 1907
The respondent purchased a railway ticket from the appellant at Moorhead, Minnesota, and became a passenger on its train which left Moorhead at 7:15 a. m. on April 10, 1905. The mercury then stood at about 27 degrees above zero. The heating apparatus was defective, "and there was no heat in the car during the forenoon, or until the time
It is claimed that the court erred in overruling the defendant’s objection to certain hypothetical questions, and in refusing to instruct the jury that only nominal damages could be recovered. It is conceded that the railway company was negligent, but contended that respondent’s physical condition was not caused thereby. Dr. Campbell, a witness called for the plaintiff, was asked a hypothetical question, which contained a statement of an assumed fact with reference to which the record contained no evidence. The witness testified that the fact thus assumed was by him considered as material, and was taken into consideration as a basis for the opinion which he gave. It must be conceded that the objection to this question should have been sustained; but it is claimed that the objection was not sufficiently specific, and that the error cannot be taken advantage of at this time. The record shows that the question was objected to
As not being based upon a true statement of the evidence in the case.
Mr. Hildreth: I ask counsel to point out in what respect the hypothetical question does not properly state the testimony.
The Court: There is one part of it assuming that she had regular sleep before that time and that her appetite was good.
Mr. Hildreth: She testified she had always slept well and had no trouble about her appetite before that.
The Court: Objection overruled. Exception.
The same objection to a similar question asked another witness was made and overruled, without suggestion or comment by either counsel or court.
Had the judge asked counsel to designate what was improperly included in or omitted from the question, in order that ah intelligent ruling might be made, and he had refused or failed to do so, the error could not have been made the basis of an exception. But the judge seems to'have assumed that he knew of the defect, and, after calling
A contrary rule applied to a hypothetical question would lead to the absurd conclusion that counsel may ask a question obviously imperfect, containing a mere suggestion of the evidence, and throw the burden upon his opponent of supplying all that is necessary .to make the question perfect. The question might be'a mere skeleton, and the objecting counsel would be required to furnish the substance atxhis peril. This would be to impose the burden upon the wrong party and en-, courage careless and slovenly practice, which would in the end result in more frequent miscarriages of justice than would a strict adherence to technical rules of practice. As this record stands, the objection must be held to have been sufficiently specific.
But, regardless of the effect of this erroneous ruling, there must be a new trial, because the verdict was so large as to show that it was the result of passion and prejudice. The motion for a new trial was
The order is therefore reversed, and a new trial granted.