37 N.Y.S. 770 | N.Y. App. Div. | 1896
We are asked to reverse the judgment'appealed from and to send this cause back for a fifth trial upon a record containing something over two hundred exceptions, applying in various -ways to almost everything not in the interest of the defendant said or done by the justice who presidéd at the last trial. We have carefully examined, the whole case and find there was no error committed of a character or sufficient in gravity to call for the resubmission of the issues to a jury) and that the case is now in such condition that the important question of the liability of the defendant- as matter of law may be properly presented to the court of last resort; but it is due to the defendant and his counsel that the reasons' which impel -us to affirm this judgment should be fully set forth.
That group of the defendant’s exceptions which relates to the law as charged by the trial justice at the last trial may be conveniently éxamined at this point, The exceptions referred to were taken to portions of what the justice did charge and to parts of what he refused on request to charge. In its general scope and purport the rule of liability as declared by the General Term was announced but in one respect with a radical modification. Instead of adhering to the views of the appellate branch of the court, the trial judge
Exceptions appear in the case to particular phz*ases and language of the trial judge, in charging the jury and in reply to remarks of
Recurring to the earliest stage, of the, trial, the learned counsel for the defendant insists upon the validity" of exceptions., taken to. the rulings of the court as. to the qualifications of jurors. By the Code of Civil Procedure, the justice at Circuit was the trier of all questions concerning the fitness and competency of jurors, and his determination thereupon is reviewable under exception in -the same manner as .a decision of an issue of fact. Mr. Putnam was called and examined as to.his qualifications' for service on the panel. He was evidently an intelligent and discriminating man. In .answer -to a question put by the defendant’s counsel, he stated that be might
Mr. H. C. Furman was called for service and was rejected by the court, to which the defendant excepted. Mr. Furman swore he had expressed an opinion from reading the evidence in the first case, but it had been somewhat modified by reading the account of- the second trial. He also swore his judgment would not-be swayed by any opinion he held or impression he had, but that lie-then had both an opinion and an impression, which meant, of course, he would enter the jury box with them. He was held to be disqualified. In civil cases it is enough if the proffered juror has formed or expressed an opinion gathered from statements of parties
Another gentleman, Hr. Edward Fisher, was rejected because ■of his connection with a manufacturing corporation which made parts of instruments used by the Western Union Telegraph Company. According to the admission of his counsel, Hr. Sage . is one of the Western Union Telegraph Company.” Although Hr. Fisher’s statements, were such as to make him appear in print ■qualified to serve, we- cannot say that the trial judge, who observed fills manner and demeanor, was not justified in concluding as matter of fact that he would not be a fair and impartial juror. ¡No especial reference is necessary to the exceptions relating to Hr.- Dohn and Hr. ¡Rockwell.
We are next to consider the errors assigned as having been committed during the progress of the trial, and of' these we find that the learned counsel for the defendant lays particular stress upon the-admission of the testimony of the witness Baillard and upon the-■course counsel was permitted to pursue in the. cross-examination of Hr. Sage. Baillard, who was not called on either of the three preceding trials, testified under objection that after the explosion and when Hr. Sage was receiving attention in O’Connell’s drug store . a man pointed out to him as Hr. Sage said “ something about being protected, about a protection that he had had from the explosion.” That this testimony was all-important cannot be questioned. It was relied upon as an admission by Sage that something had happened to benefit him or save him from more severe injuries than those he actually sustained, and it was sought to weave it into the fabric of the plaintiff’s - case by connecting it with the claim that nothing else occurred or could have occurred that would have afforded protection except the very' act which Laidlaw alleged was
The cross-examination of the defendant was a searching and severe one, daring which several incidents occurred; now made the 'subject of indignant criticism,by his counsel. .The questions put to- Mr. Sage respecting an alleged, interview between a third' person and ¡Rockwell, a juror not accepted, had nothing to do with the -case ■ in. any aspect, but it is the merest assumption that they, in any way, prejudiced -the defendant; and so of the inquiries as to the lack of interest of Mr. Sage in Laidlaw’s welfare. If these inquiries were not considered proper, objection should -have been taken when •fliey were first mentioned, which was not' the -case with the topic ' last referred to. All of the objections to the manner of -the' cross-examination may be-disposed of in--a wnrd. It was entirely within the discretion of the trial judge to determine how far and to what extent for the legitimate purposes of the case he would allow or ■ disallow questions .disparaging to a witness and not relevant to the issues. In Great Western Turnpike Co. v. Loomis (32 N. Y. 127) it was held that the range of irrelevant inquiry for the purpose even of degrading a .witness is subject to the control of the presiding " judge, “ who was bound to permit such inquiry when it seemed to .him, in the exercise of a sound discretion, that it would promote the ends of justice, and to exclude it when it seemed unjust to the witness, and Uncalled for by -the circumstancesi of the cáse.” If the questions on cross-examination were objected to - on the specific ground referred to, the court was at liberty, and ¡it was its duty,, to act in its best judgment, and we cannot say its decision presents a manifest case of abuse or. injustice.
■ Another incident of the cross-examination of Mr.. Sage, to which objection was taken, was the usé by counsel of a newspaper- cutting from which many statements of a reporter, stated to be a distant relative of Mr, Sage, were taken as the basis of questions put to the witness. We do "not understand that the learned counsel for the defendant contends that his adversary had not the right to use this • newspaper report of an alleged interview with Mr. Sage for the • purpose of framing questions to ascertain whether he did not make for publication, various admissions or statements within a' day or two -.after the explosion.took place, and yet that was obviously the pur
We are finally to consider the exceptions to the motions for non-suit and the sufficiency of the evidence to sustain the verdict as it is brought up by the' appeal from the order denying the motion for a new trial. Bearing in mind what has previously been referred to as the several elements of fact, proof of which was declared by the G'eneral Term to be essential to a recovery, we have examined the whole record, and with the result that we hold that a case was made out sufficient to go to the jury, and that we should not interfere with the verdict. Concerning the act itself, the moving of the person of Laidlaw, he swears to it positively. Mr. Sage as positively denies it. Mr. Robertson, the young man who was one of the greatest sufferers of all, was called to corroborate Mr. Sage. He was a disinterested witness and meant to tell the truth, but his testimony is not of the convincing character claimed for it by the defendant. He does say that from the time Mr. Sage began to back away from Horcross until the explosion took place he was able to see both Laidlaw and Sage, and that the latter did not touch or move the ■former, but in this he must have been greatly mistaken, for from his situation he could not have kept his eyes constantly on Sage and Laidlaw and Horcross, for they were not all in the same range of vision all the time, that is, from the point at which Robertson stood, which was at the little window in the anteroom partition, through -which he saw Sage and Laidlaw at the table, yet he says that from
lobby of Mr. Sage’s office into the anteroom, passed Mr. Sage, who was in conversation with a person who turned out to be the dynamiter, and took a position about the middle of a small table facing ' Rector street and looking out on Trinity church yard. Mr. Sage,. having read the startling paper Rorcross handed him, with admirable nerve and coolness, undertook to temporize with the madman. He saw the situation and. the] impending horror. He says so ■ himself. There is no disagreement as to what,he next did. He walked back,ward to the angle of the small table nearest Rorcross and took ;a half-seating position ■ on it. ’ Then Laidlaw says- Sage put out his hand and gently and quietly drew him before him so- that he covered the greater part of Mr. Sage’s body, and then the latter spoke'-the words addressed to Rorcross, “ If I trust you why can .you not trust- ■ me?” Row it is incontrovertible that Mr. Sage knew of the. danger and. Laidlaw did not. Mr. Sage positively denies having' put his hands on Laidlaw until after the catastrophe, when he says-he helped Laidlaw to arise, and he denies that he ever uttered -the- ‘ words attributed to him.. He also says that Laidlaw stood at the-very opposite end of the table all the time. Laidlaw further testified that as soon as the words were uttered by Mr. Sage, the expío- ' sion took place. The respective versions of the two parties were clearly put before the. jury, who believed Laidlaw. His testimony,, if true, showed' the commission of the act, its deliberate .character, Sage’s knowledge of the threatened danger and liis own- ignorance-of it, from all which the jury could have inferred and did infer, that, the gentle drawing of the plaintiff before him, without violence, hut-yet with strength sufficient, to induce the plaintiff to yield to it, was-done by Mr; Sage with the intent and design of screening his person, with the body of the plaintiff.
And here it becomes material to consider an argument-of the counsel for the defendant before referred to. The trial judge-, disregarding the ruling of the General Term, held that it.was incumbent upon ■the plaintiff to prove that Iris injuries were the result of. his removal.
Another view is presented by the learned counsel for the defend•ant under which he claims that the version given by Laidlaw is ■simply an impossibility, and that' the proof is conclusive from ■circumstances that Laidlaw’s body could not have been used as a . ¡shield to protect Hr. Sage. Laidlaw stated that when Hr. Sage ■moved him he was drawn to a position which covered all Hr. Sage’s person except the right arm and leg. How it is clear that certain-particles or substances of flying material, penetrated Hr. Sage’s •clothing and entered his body near the median line. The question Is asked, how could this have occurred without those particles passing through Laidlaw’s body if he really stood in front of Hr. ¡Sage in the attitude he claims ? It is not shown that Laidlaw and "Sage were in actual close contact.' There was an open space between them; how wide does not appear^ but it must have been ¡some inches at least. It is not inconceivable that in the titanic whirlwind of the explosion small flying fragments may have penetrated Hr. Sage’s person through the open space referred to.' There is nothing more extraordinary in the incident under consideration ' than in the circumstance that the force of the .exjflosion blew open ■■a large iron safe and scattered its contents all about the room. Ho -one can account for the eccentricities of such an occurrence. If "there were known and provable unvarying incidents of such ■phenonenal events, some ascertained physical law acting uniformly ¡and equally on all such occasions, we might be ¡able to say what was ■of what was not impossible within the operation of such law, but we have no such guides or criteria. And so also with the burns on Hr. Sage’s hand, spoken of by Dr. Hunn and which.were severe ¡and of long continuance without healing. If we could say at what fraction of a.second they were inflicted, an argument might be
We have thus considered the material points . .urged by the learned and zealous counsel of the defendant, and repeat that we would not be justified in subjecting these parties again to a retrial of the cause. It is in a better position now than it ever has been for the ultimate judgment' of the Court of Appeals, and' we have endeavored to set forth our reasons for affirming the judgment in such a way that it may be reviewed on this record in the light of what we conceive to be the true state of the case as it has been presented to us. In conclusion, it is to be said that we. do not consider the verdict excessive under all the circumstances of the case.
The judgment must be affirmed, with costs.
Van Brunt, P. J., Rumsey, Williams and O’Brien, JJ., concurred.
Judgment affirmed, with costs.