Garrison v. City of Portland

2 Or. 123 | Or. | 1865

Stratton, J.

Of the numerous exceptions taken at the trial, but three have been relied upon in the argument of appellant’s counsel, and these only will - be considered.

1st. Sherry Ross, a juror on the regular panel, being called, was challenged peremptorily by the plaintiff, but immediately after and before another was called, or before the juror had retired, the plaintiff, by leave of the court, withdrew his challenge, to which the defendant excepted.

Section 189 of the Code provides for the order in which challenges are to be taken; but if the statute were silent upon the subject, they would naturally fall into this order. As each juror must be disposed of before another is called, it is difficult to see-how the defendant could have been prejudiced by the action of the court.

Judicial proceedings are and ought to be in conformity with the provisions of law, or some fixed rules, but it would be pushing the rule to an absurd result if there was no discretion or power in a coiu’t to facilitate its business, without incurring the hazard of a reversal of its judgments, and especially when the record discloses no state of facts to the prejudice of appellant.

2d. In the formation of the jury, the plaintiff interposed challenges to these jurors for cause, on the ground that they were residents and tax-payers of the city of Portland, and interested in the event of the suit. The challenges were allowed and the defendant excepted.

The Code, section 184, subdivision 4, leaves the question of what is a disqualifying interest to the common law rule, and it must therefore be interpreted in the light of adjudicated cases. The theory of a trial by jury is, that the jurors-shall stand absolutely indifferent between the parties litigant that they shall be as free from interest or prejudice as it is possible for humanity to be. The authorities are numerous- and uniform to the effect that an interest in the event of the suit, though small and remote, disqualifies the juror. The jurors set aside by the court, being tax-payers, were directly responsible for a rateable proportion of whatever verdict might be rendered against the city. The ruling of the court, below was in conformity with the current authorities and right.

As to the last point ruged by appellant: The plaintiff' called as a witness one Dr. J. A. Davenport, who testified to-the general health of the plaintiff for several years prior to the 22d day of October, 1862, the date of the accident.

Upon cross-examination, the physician testified that the plaintiff had been suffering from disease during the time-referred to in his direct-examination, whereupon he was asked this question by the counsel for defendant: “ What was the disease from which plaintiff was suffering at the time referred to by you ?” The plaintiff objected to the question, and the objection was sustained by the court. Inasmuch as it was possible that the answer to this question might have thrown some light upon the physical condition of the plaintiff at the time of the alleged injury, and therefore might Rave affected the question of damages, the answer to the question should have been received, and allowed to go to the jury, and the refusal was error.

The object in the examination of witnesses, both direct and cross, is to elicit the truth, to get all the facts pertinent “to the issue before the jury, and when that is done, the object aimed at is accomplished; and, as a rule, it is not material from which side it comes. The court erred in suppressing what might Rave been an important fact, and the defendant could have stood upon his technical advantage had he chosen to do so. At a subsequent stage of the trial, the witness was called by defendant himself, and the same question was put without objection, and was answered. The defendant has not, therefore, been damaged by the action of the court in the first instance. The error was cured. It is not intended to be intimated that a ease might not arise where it would be error to drive a party to the necessity of calling an adversary’s witness for himself, where he had a right to an answer upon a cross-examination.

Judgment is affirmed.