56 F. 288 | 9th Cir. | 1893
This was an action by John T. Reese against the Union Pacific Railroad Company to recover damages in the sum of $50,000 for an alleged injury sustained by the plaintiff while boarding defendant's train December 20, 1887, at the city of Cheyenne, in the territory of Wyoming. The case was originally commenced in ihe district court of the second judicial district of the territory of Montana, and transferred to the United States circuit court for the district of Montana after the admission of the territory into the Union. There was a trial before the circuit court and a jury, resulting in a verdict: in favor of the plaintiff for $25,000. The court overruled a motion for a new trial, on condition that the plaintiff would remit $10,000. whereupon the plaintiff agreed to remit the sum of $10,000, and thereupon a judgment was entered in favor of the plaintiff for $15,000. The defendant then sued out this -writ of error.
The errors assigned are:
First That the court erred in refusing the motion of the defendant below to suppress certain depositions taken on behalf of the plaintiff, and permit ting the same to be read in evidence, for the reason that the same were taken in term time, and without leave of the court, and at a term at which the cause could be tried. The term of court to which reference is made commenced on the first Monday of April, 1892. The case was set for trial on May 2, 1892. Plaintiff’s notice to take ihe first deposition was served upon the attorney for the defendant on the 19th day of April, 1892, io take ilie deposition of a witness on ihe 25th day of April, 1892, in the town of Irondale, Jefferson county, Ohio. The notice to take the second deposition was served upon the attorney for the defendant on the 23d day of April, 1892, to take the deposition of a witness on the 27th day of April, 1892, in the city of Cheyenne, Wyo. The cases of Allen v. Blunt, 2 Woodb. & M. 121-135, and Bell v. Nimmon, 4 McLean, 539, are cited as authority in support of the defendant’s contention that these depositions should have been suppressed, because taken in term time. In the first case the deposition was taken
No objection was made in the court below that a reasonable notice had not been given of the taking of the depositions in this case, and the objection that the depositions were taken in term time is not within the statute. It is a rule of law that, where a party excepts to the admission of testimony, he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken. Burton v. Driggs, 20 Wall. 125-133; Pow. App.
The second error assigned relates to the exclusion of depositions offered in evidence by the defendant. It is claimed that these depositions tended to prove that ¡be plaintiff had been known to be under the influence of drink and intoxicated several times (luring his residence in Cheyenne, and while employed as superintendent of the Lfllvor Crown smelter, just prior to the alleged injuries. The defendant, in its answer, bad charged the plaintiff with contributory negligence at the time of the accident, and upon ¡hat issue plaintiff appears to have t(‘stifled in chief that he was not, under the influence of liquor or intoxicated on the night, of tlie injury. Upon cross-examination he testified that he was not a drinking man, and had not. been drinking for several years prior thereto, and had never been raider the influence of liquor or intoxicated during his residence in Cheyenne, or during the time he was engaged as superintendent of the Silver Crown smelter. Tlie depositions were offered to discredit the pin inti IPs testimony in this rouped, but it is now-con tended that they were also admissible as evidence in mitigation of damages. PlainUlFs testimony as to his previous habits of sobriety was brought out on cross-examination, and was clearly a collateral matter. To that extent, therefore, the plaintiff became a witness for the defendant, and his testimony was not open to contradiction. and thereby subject to be discredited. 1 Greenl. Ev. § 449; Odiorne v. Winkley, 2 Gall. 51; People v. McKeller, 53 Cal. 65; People v. Bell, Id. 119; Stevens v. Beach, 12 Vt. 585; Seavy v. Dearborn, 19 N. H. 351; Bivens v. Brown, 37 Ala. 422.
The depositions were not offered as evidence in mitigation of damages. and the record does not disclose the stain of tlie evidence upon that issue, or that the plaintiff’s previous,habits were involved in the question as to the amount: of damage's he liad sustained. The complaint alleges that plaint iff w-as injured while at temptingto board one of defendant’s trains, whereby his left, arm was broken between the wrist and elbow, and that he was further injured on the right side of Ms head; (hat by reason of the said injury to his arm it became necessary to amputate the sanie, which was doin', and plaintiff was thereby deprived of his ability to attend to the business of
Judgment affirmed.