Yazoo & M. V. R. Co. v. Wagner

87 F. 855 | 5th Cir. | 1898

SWAYNE, District Judge,

after stating the facts as above, delivered the opinion of the court.

We think the question of law raised by the first and second assignments of error is well settled in Louisiana, — that parties are bound, by the evidence introduced by'them on a material point, although not strictly presented by the pleadings, and that, after establishing’thd facts at a trial, they cannot be permitted to close to their adversary the door which they themselves have opened; and the court, after havi'iig been made to bear and pass upon testimony introduced by the respective parties either under the allegations which are actually made, oí1 which might have been conducive to the final determination of the object of the controversy, should adjudicate on these tacts as fully as if received under specific averments. A judgment rendered under rucii circumstances becomes a conclusive bar to a reinvestigation of the matter. It has grown customary to allow eonsidejable latitude at the trial, from the ordinary and strict rulings of evidence, in ihe manner and the time at whicn witnesses should be called for examination and cross-examination; and the circumstances of each case should, to a large extent, regulate the ruling of the judge in the exercise of his discretion in the matter. , We sympathize very strongly with the plaintiff in error in the comments made upon the testimony in reference to the -other question raised by the fourth assignment of error, but, upon inspection of the record, we believe that the court below was not only justified, but compelled, to submit the testimony to the jury, although some of it seems to us of a very doubtful character. Upon careful inspection of all the record, we do not find the errors assigned to be sustained. The judgment rendered herein is therefore affirmed.

PARDEE, Circuit Judge, dissents.