147 N.W. 787 | N.D. | 1914
Plaintiff is a florist residing at Devils Lake, North Dakota, and at the time of the trial was fifty-eight years of age. He sues for injuries alleged to have been received while a passenger upon one of defendant’s trains, which was wrecked near Litchfield, Minne
The plaintiff was upon one of the coast trains, consisting of an engine and about ten coaches, and was asleep in an upper berth of the Pullman sleeping car. The accident happened at 1: 46 a. m. and was ■ caused by a misplaced switch. The engineer testifies that he was running about 28 or 30 miles an hour when he saw the open switch about three car lengths ahead, and that the train was going pretty nearly as fast when it struck the same. The locomotive and three coaches left the track and ran along upon the ties. The engine slowed down after it hit the switch, and finally turned over on its side. None of the rear coaches left the rails, and were afterwards returned to Minneapolis and continued on their way over another line, reaching Devils Lake about eleven hours late. The plaintiff testifies that he was asleep in his berth when the accident occurred, and that the first thing he knew he was in the aisle, and the train was stopped. He says that he opened his eyes and looked at the electric lights, and thought that the whole car was on fire, and ran out as quickly as he could. Being reassured by a member of the train crew, he returned to his berth and dressed. He further testifies that when he got back to the car and was lying on the bed, his head started to ache, and that he felt of his head and there was a bump there. He says the bump was to the left of the center of his head and over the left ear, and “big as an egg I guess, pretty near, — a small egg.” He testifies that he did not know how he got out of the berth. He further testifies that since the accident he has headaches all of the time, and gets dizzy, and cannot work in his greenhouse. He also testifies that his right arm was injured. “I got no feeling in it. It feels dead. I can’t lift it up, and I got no strength in it. Can’t lift anything like I could before, — just a dead feeling is all. My arm feels just like a man that lies on his arm and sleeps, not a pain, just dead, that is all, some of the time: some of the time it is a little better. Don’t have'
There is some dispute as to the facts above narrated. No one seems to have seen the plaintiff fall from his berth, and the jury were asked to* make that finding from the circumstances shown to exist. The defendant offered the testimony of other physicians who had examined plaintiff, and who testified that his condition, if it actually existed as testified to by himself, might be due to “general senility, a gradual lessening: of the functions from old age, gradual breaking down of health on account of age, natural process.” These physicians also testified that a blow on the left side of the head would be very liable to affect the left side of the brain. Testimony was also offered tending to dispute the-probability of plaintiff’s being thrown from his berth.
Upon this state of facts defendant insists that there is no direct evidence of the manner in which the accident occurred, and the injuries, shown are consistent with, and may be ascribed to, other causes; and that it is “clearly not within the province of the jury to guess wherein, the truth lies, and to make that guess the foundation for a verdict.”
After a careful consideration of the facts in this case, and after reading the many cases cited by both appellant and respondent, we have-reached the conclusion that there is sufficient evidence in the record to* justify the finding that plaintiff was thrown from an upper berth on account of the-derailment of the locomotive and front cars, and that he
Caledonia Gold Min. Co. v. Noonan, 3 Dak. 189, 14 N. W. 426, 121 U. S. 393, 30 L. ed. 1061, 7 Sup. Ct. Rep. 911; State ex rel. Morrill v. Massey, 10 N. D. 154, 86 N. W. 225; Jasper v. Hazen, 4 N. D. 1, 23 L.R.A. 58, 58 N. W. 454; Casey v. First Nat. Bank, 20 N. D. 211, 126 N. W. 1011; Acton v. Fargo & M. Street R. Co. 20 N. D. 434,. 129 N. W. 225. The cases cited by appellant are based upon facts, showing the contention of the plaintiff to be so inherently improbable and unreasonable as to test the credulity of the court. We do not believe the evidence in this case is of that nature, and hold with respondent upon this assignment.
The Court: “I allow you to inquire relative to the jarring of the car and stopping, or any reference to anything that occurred to Kersten.”
And again: “I allow you to inquire of this witness relative to anything about Ilersten in that car at that time.”
And again: “I will allow it, as to what the train was doing and what noises the train was making.”
Again: “I don’t think this evidence is admissible, but I am going to let it in, and you, gentlemen of the jury, when I let it in, will consider it for what it is worth under the instructions of the court at the close of the case.” This last remark was made when plaintiff had objected to the following question to the brakeman who was in the dining-car, as before mentioned:
Q. “Just describe what effect, as you saw it, the stopping had upon him at that time.”
After these remarks of the court the defendant recalled his witnesses, and they were allowed to testify along the lines desired, subject only to objection to the questions for other reasons. It is thus apparent that error, if any, occurring- in the earlier rulings of the trial court, was cured by the subsequent admission of the testimony. It will therefore be unnecessary to decide whether or not the testimony was in fact admissible, upon which question, however, see: Laufer v. Bridgeport Traction Co. 68 Conn. 475, 37 L.R.A. 533, 37 Atl. 379.
Q. “Would not this hardening of the arteries — might it not rather sometimes act locally as well as over the whole body ?”
Objection was made to this question as assuming a state of facts not in evidence. The witness had already been cross-examined at length, and had testified that plaintiff’s symptoms might be explained on other •theories, if the symptoms had come on gradually, and not suddenly. While this question might have been allowed along the lines of the rest of the cross-examination, we believe the extent of such cross-examination to rest largely in the discretion of the trial court, as cross-examination must end somewhere. There is no reversible error in this ruling.
Finding no error in the record, the judgment is accordingly affirmed.