115 Ark. 142 | Ark. | 1914
(after stating tbe facts).
In the course of the argument of /the attorney for the appellant, he turned to the -deposition of -a certain witness and started to read from it. Counsel for appellee objected to his -doing so. ■ Counsel for appellant thereupon stated that he did not desire to read the entire deposition, but merely to quote ex-cerpts which, in -his opinion, would bear out the contention he was then making in his argument, and he requested the court’s permission to read to the jury such excerpts. The court refused to grant such permission -and refused to permit him to quote to the jury any portion- of the testimony of s-aid witness by reading from said deposition, the court stating in the presence -of the jury, “the- evidence of the witness is introduced but once in my court.” Appellant objected and excepted to this statement of the court and -also to the ruling of the court in refusing to permit counsel to read to the jury excerpts from the deposition of the witness.
The remarks of the court in making its ruling were only tantamount to saying that the court would not permit the time to be consumed in reading the deposition more than once. It was the duty of the trial judge to see that the proper order of procedure was observed in the manner of introducing testimony 'and the arguments made ■before the jury, and this court will not reverse for the ruling of the trial court on these questions of procedure unless it appears that there is ah abuse of the court’s discretion which results in prejudice to the party making the objection. While the court might very properly have permitted the counsel to read the extracts he desired to read in order to show that he was stating the testimony correctly, the court did not err in refusing this permission and in thus leaving the matter to the recollection of the jury who had heard the reading of the deposition.
The testimony on behalf of appellant tended to show that appellant in due time notified the consignee foundry company, through the agent whose duty it was to give such notice, that the planer cylinder had been received. But this instruction makes appellant guilty of actionable negligence as a matter of law because one of its agents, according to the testimony, told an agent of the foundry company, upon inquiry, that no such piece of machinery had been received. Notwithstanding this reply, it was still a question for the jury to say, under the circumstances, whether or not appellant was negligent. But the instruction makes the bare statement of one of the employees of appellant that the machinery was not on hand (in answer to the inquiry of the agent of the foundry company) conclusive evidence of the negligence of the appellant. The foundry company, having received due notice through appellant’s agent that the planer cylinder had been received (by appellant, could not, as a matter of law, make the appellant liable by simply inquiring of one of appellant’s employees as to whether the piece of machinery was on hand, upon the reply simply of such employee that it had not been received, when it was not shown that 'such employee of the appellant was in charge of the piece of machinery or that it was the duty of such employee to know that the machinery was on hand.
The effect of the instruction was to make the appellant guilty of actionable negligence as a matter of law under such circumstances, whereas the question should have been left to the jury to determine as to whether, under such circumstances, appellant 'had failed to evercise ordinary care to notify the foundry company of the arrival of the planer cylinder in order that the same might be in due time delivered to the consignee.
For the errors indicated the judgment'is reversed and the cause remanded for a new trial.