100 P. 390 | Utah | 1909
(after stating tbe facts as above).
The first assignment of error discussed by counsel for api-pellant relates to tbe admission in evidence, over their objection, of certain photographs of tbe derailed ears and of tbe railroad tracks and grade at tbe point where tbe wreck occurred. It is a well-settled rule that photographic views, when proved to be correct representations of
Nor did the court err in permitting Potter and Astle, two of respondent’s witnesses, to testify as to his condition since the accident'compared with what it was before the accident. The record shows that P'otter had known respondent for about three years, and that Astle had known him for more than twenty years, before the accident. They assisted in taking him from the wrecked car, and in earing for him during the rest of his journey homeward. They occasionally met and talked with respondent during the two years intervening between the time of his arrival home and the trial of the case. Potter testified that before the accident respondent’s voice was “ordinarythat it was “clear,” and since the accident it has been husky and weak. Astle testified that before he was injured respondent appeared to be a healthy man, and that he had never known him to have sickness of any kind; that his voice was clear and strong,
“Such an observer may also state a change in apparent condition, whether the change is from sickness to health, or from health to sickness, or from had to worse, or from worse to better. He may also infer and state that a person’s ability to help himself, or his faculties, or the use of his limbs, or other parts of his body, or his earning capacity, has or has not been impaired.”
Many cases are cited in the note which fully support the foregoing propositions. Further, it is a well-settled rule that where a witness details the facts upon which he bases his opinion, the error, if any, is usually harmless, and especially so where, as in this case, the evidence
Fourteen of plaintiff’s witnesses, who were passengers on the train at the time of the accident, testified as to> the rate of speed at which the train was going just prior to and at the time the cars were derailed, and they variously estimated the speed to be from thirty to fifty miles an hour. Two witnesses for defendant estimated the speed to be from
Furthermore, the testimony of eleven, of plaintiff’s witnesses who testified as to the rate of speed at which the train was traveling is not assigned as error. Tw'o of these witnesses testified that the speed of the train was about fifty miles per hour; two estimated it to be between forty and fifty miles; two from forty to forty-five; and three at about forty miles an horn’. Conceding, for the sake of argument, that the testimony objected to should have been excluded, the admission of the foregoing evidence without ob-
Appellant’s next contention is that the court erred in permitting the witness Gallagher to testify to the speed limit of trains at the time of the accident over that portion of the road where the accident' occurred. Gallagher was section foreman over the portion of the road where the accident occurred, and for several days before the accident had been engaged in repairing the road at that point. He testified that he obtained his information respecting the speed limit of trains over this particular part of the road, which was fixed at fifteen miles an hour, in a letter written to him by his superior officer; that on the 1st day of August, 1905 (nearly a year before the trial of the case), at Junction City, Kan., he turned over all the papers to his successor, including the letter in question, and that he had not seen the letter since, and did not know where it was. Objections were made to the testimony respecting the speed of the trains on the grounds that it was immaterial, incompetent, and not the best evidence. This assignment is without merit. The letter related to a collateral matter which was no paid of the subject-matter of the action. That is, neither the letter, nor the matter to which it referred, was directly involved in the case; nor did it relate to a matter which the law requires to be in writing. Therefore it does not fall within the general rule which holds that before parol evidence of the contents
The ease of Polly v. McCall, 37 Ala. 20, was an action to recover damages for the overflowing of plaintiffs land, and proof of a written notice from plaintiff to defendant, requesting an abatement of the ditch and levee by which the over
There is another reason why this assignment of error must be overruled. It was shown that the letter in question was not within the jurisdiction of the court, and the rule, as declared by the great weight of authority, is that when a writing which is necessary in evidence is traced to
One of the respondent’s attorneys, in making his opening statement to the jury, said: “Eifty-four out of fifty-six of the persons in this party were injured in the wreck, and testimony is before the jury that settlement was made with all but two of the persons injured. By thus settling with all those who were injured except two, the company has admitted its liability for the damage done by this wreck more than fifty times.” It is strenuously urged, on behalf of appellant, that these remarks constitute reversible error. On cross-examination of one of respondent’s witnesses counsel for appellant elicited the following testimony: “I met Dr. Perkins and Mr. Manchester, claim agent for the railroad, in Providence, R. I., about six weeks after the accident. Q. Tou remember the mission they were on? Tou were taken into their councils? A. Tes; I understood they were down to try and make settlement with some of those who had not been settled with. Q. Tes. There were only three that
In the course of his cross-examination this wdtness volunteered the following statement: “Most cases, you understand, on the railroads now are settled; those that are reasonable.” Counsel then asked the following question: “Well, those that ask-for a reasonable sum in comparison to their injuries?” The witoess answered: “That is, if the railroad thinks it is reasonable, they settle; yes. We settle ninety-nine out of -one hundred, and it isn’t the railroad’s fault that they don’t settle the other one.” And again he says: “I think the railroads have been very reasonable in the last fifteen years. ... I think our claim agents are very reasonable; they try to make the men satisfied.” We can conceive of no purpose for which counsel for appellant introduced this matter into the case, unless it was to impress upon the minds of the jury that it is the policy of the railroad company to make a fair and honorable settlement of all just claims for damages made against it, and further to create the impression that the case at bar would have been amicably settled had it not been for what the railroad company deemed the unreasonable and extortionate demands of respondent. However, we are not concerned as to the motive counsel for appellant may have had in introducing this ele*
We do not wish to be understood as holding that in all cases of misconduct of this character an admonition, rebuke, or reprimand from the court, even when supplemented hy cautionary instructions to the jury, will remove the prejudicial effect produced by the misconduct. Instances may, and'do sometimes, occur when the misconduct is so flagrant and of such a character that neither a vigorous reprimand of counsel nor an instruction to the jury can right the wrong inflicted on the adverse party by such misconduct. But even in such cases the authorities practically all hold that it is incumbent upon the aggrieved party, if he intends to rely on
“In the discharge of this office, as of every other, the presiding judge is entitled to reasonable aid from the counsel in the case on trial, or from the parties themselves, where they appear in propria persona. Where counsel, in arguing to the jury, exceed the limits allowed to advocacy, the way to correct the prejudicial effect of the argument is either to object to it at the time, to answer it by counter ■argument, or to ask suitable instructions to the jury with reference to it. After verdict it comes too late; and, whether the objection is saved for review by affidavit, or by.a recital in a bill of exceptions (according to the practice in the particular jurisdiction), it is equally necessary that the record should show that the objection was made at the time of the misconduct.”
Tbe following authorities illustrate and support this doctrine; 2 Ency. Pl. & Pr. 755; Spelling, New Tr. & App. Pro. 90; State v. Spencer, 15 Utah 149, 49 Pac. 302; C., B. & Q. Ry. Co. v. Kellogg, 55 Neb. 748, 76 N. W. 462; U. P. Ry. Co. v. Field, 137 Fed. 14, 69 C. C. A. 536; Rudolph v. Landwerlen, 92 Ind. 34; Metropolitan Ry. Co. v. Johnson, 90 Ga. 500, 16 S. E. 49. Furthermore, section 3304, Comp. Laws 1907, so far as material here, provides:
“What may be reviewed on appeal. — Upon an appeal from a judgment, all orders, rulings and decisions in an action or proceeding to which exceptions have been taken in the court below, or which -are deemed excepted to, as provided by this Code, are before the Supreme Court for review.”
Misconduct of counsel in making improper remarks to tbe jury in tbe course of an argument is not one
“An exception is an objection upon a matter of law to the de■cision made by a court, judge, referee, or other judicial officer, in -an action or proceeding. The exception must he taken at the time the decision is made except as provided in the next section.”
In conclusion we remark that, after a thorough anid careful’ examination of the entire record, we are satisfied that the case was fairly and impartially tried, and that no injustice has been done. There is an abundance of evidence to sustain the verdict. ■
The judgment of the court below is affirmed, with costs.