52 Colo. 300 | Colo. | 1912
delivered the opinion of the court::
The verdict and judgment was for the plaintiff, and the case is here on appeal.
About three weeks before the accident, a bridge crew, under the direction of a bridge foreman named Hemingway, began repairing the bridge under written and verbal instructions from the superintendent. On the day of the accident, he had completed the work up to and including the middle bent. It .was his intention to take out and replace the intermediates in the adjoining bent after dinner, which necessitated the removal of the line girts between the bents. These girts, it will be remembered, were the middle set of braces that kept the bridge from buckling- under the weight and vibration of trains. Just before starting to dinner, he removed these line'girts, and in their stead, spiked on either side a heavy plank to the outside of the batter posts between these bents. While the workmen were at dinner, and about, ten minutes after twelve o’clock, the freight attempted to.cross the bridge, which gave way. The undisputed evidence shows that two of the piles of the middle bent were so jotten that they would mush and crumble in the hand, and a third was very rotten.
Two theories were advanced on the trial as to the cause of the accident, that of the plaintiff being that it resulted from the rotten condition of the piling; while the defendant contended this was not the cause, but that the accident was due to the negligence of Hemingway in removing- the line girts without supplying proper and necessary supports in their place.
It follows that any error in the instructions, or admission or rejection of evidence, except on the question of damages, is harmless. The jury in no event could rightfully have returned a verdict for the defendant. Cases are not reversed on harmless error. The evidence of the defendant alone sustains the finding of the jury for
There is another reason why this assignment cannot be sustained. In order to be considered, it must affirmatively appear from the record that the challenging party exhausted all its peremptory challenges.-—United Work
"■ In jury trials at common law, the record proper, -or judgment roll, consisted of the summons and return, the pleadings, the verdict, and the judgment. Our code provides, section 185,
. “ * * * when the challenges for cause shall have been completed, and there shall remain on the panel eight jurors more than the number who are to compose the jury, the clerk shall make a list of those so remaining, in the order in which their names were.called and hand the..same to the plaintiff, who shall designate thereon the name of one juror peremptorily challenged by him, and hand the list to the defendant, who shall designate the name for one juror peremptorily challenged by him, and' return the list to the plaintiff, and the parties shall so proceed alternately to challenge-until the peremptory challenges shall be exhausted or waived, when the clerk shall call the remaining names, or so- many of them as shall be necessary to constitute the jury in the order in which they appear on the list, and the persons whose names are so called shall constitute the jury.” • ■ ;.
The jury list used in forming the jury in this-case’ with the challenges thereon, is not incorporated in -the bill of exceptions. There is nothing in the bill showing that'defendant used all its peremptory challenges. In the clerk’s transcript of the record appears what purports- to' be -such a jury list with the peremptory challenges thereon. But our statute has not added to- the record proper, the .jury list used in the formation of the jury. ■ Therefore. it does .not appear from the record that defendant-exhausted its peremptory challenges. A paper improperly inserted in the record by the clerk, constitutes'no-'part' of the record and will not be considered.—Wike v. Camp