49 Minn. 457 | Minn. | 1892
Subsequently to the determination of a former appeal in this case—39 Minn. 54, (38 N. W. Rep. 763) — it was tried upon the merits, resulting in a verdict for defendant. The present appeal is from an order refusing a new trial, and, although counsel has presented and argued ten assignments of error, there are but two, the third and fourth, which need to be specially mentioned, and these are of the same import, both relating to alleged misconduct of one of respondent’s counsel when trying the case, by means of improper remarks and statements, which, it is claimed by appellant, influenced and prejudiced the jury to his injury. This same claim was made below on the argument of the motion for a new trial, and received the careful attention of the learned district judge, who manifestly regarded it as the main question before him, and who after due consideration thereof, as fully appears from a note appended to the order appealed from, held that the plaintiff was not prejudiced by the remarks and statements. As has been repeatedly declared, it was in the discretion of the trial court to determine, upon its own observation and judgment, the effect of such remarks and statements upon the jury, and whether they were prejudicial to the defeated party. Loucks v. Chicago, M. & St. P. Ry. Co., 31 Minn. 526, (18 N. W. Rep. 651;) Watson v. St. Paul City Ry. Co., 42 Minn. 46, (43 N. W. Rep. 904;) State v. Adamson, 43 Minn. 196, (45 N. W. Rep. 152.) We are of the opinion that the court below did not abuse its discretion in the premises. Again, in the absence of. a request for a ruling, or any ruling, on the trial, as to this matter, the alleged errors come clearly within the rule laid down in State v. Frelinghuysen, 43 Minn. 265, (45 N. W. Rep. 432.) In addition to this, it may be observed that without any request, and of its own motion, the court in its charge called attention to these remarks and statements, and specially cautioned the jury in reference to being influenced by the same.
Order affirmed.
