Kriss v. Union Pac. R. Co.
| Decision Date | 13 February 1917 |
| Docket Number | No. 19065.,19065. |
| Citation | 161 N.W. 414,100 Neb. 801 |
| Parties | KRISS v. UNION PAC. R. CO. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The general rule is that counsel cannot remain quiet and seemingly acquiesce in remarks of opposing counsel in his argument to the jury, and after verdict obtain a reversal because of matters not objected to at the time.
When counsel in his argument to the jury assumes that prior remarks of opposing counsel justify and make necessary the reply which he is making thereto, opposing counsel may by objection take the ruling and instructions of the court thereon. If he makes no objection and appears to acquiesce in the assumption of counsel, he will not after verdict ordinarily be granted a new trial because of alleged impropriety of his opponent's argument.
When in the course of a jury trial the parties agree upon two stipulations, one of which tends to increase the amount of the plaintiff's claim and the other tends to diminish it, neither party should be allowed, after the cause has been submitted to the jury upon such stipulations, to withdraw the stipulation against his interest and enforce the other.
When the trial court gives a general instruction upon a matter involved in the issues, and a more specific instruction is requested, such request should fairly present the matter as it affects all parties to the litigation. If it fails to do so, to refuse the request will not be prejudicial error requiring a reversal unless it appears from the entire record that the jury probably misunderstood the real issue for want of a more specific instruction.
In an action for damages, the burden is upon the plaintiff to prove by a preponderance of the evidence each element of damage sustained. If it appears that the verdict includes an item of damage not so proved, a remittitur will be required.
Appeal from District Court, Douglas County; Day, Judge.
Action by Elizabeth L. Kriss, administratrix of the estate of John J. Kriss, deceased, against the Union Pacific Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff enter a remittitur; otherwise, reversed and remanded.
Hamer, J., dissenting.Edson Rich and A. G. Ellick, both of Omaha, for appellant.
Sullivan & Rait, of Omaha, for appellee.
The plaintiff, as administratrix of the estate of her deceased husband, John J. Kriss, brought this action in the district court for Douglas county to recover damages for the alleged negligence of the defendant causing the death of the decedent. She recovered $18,137.16, and the defendant has appealed.
The decedent lost his life in a collision of two of the trains of the defendant, and the defendant submitted the case to the jury, conceding its liability, and contesting only the amount of the recovery.
[1][2][3] The principal ground urged by the defendant for a reversal is the misconduct of the plaintiff's attorney in his closing address to the jury. The plaintiff's attorney, among other things, urges that his remarks complained of were induced by the prior remarks to the jury by the defendant's attorney. These respective attorneys are, and long have been, among the leading and influential members of the bar of this state, and, from the view that we take of this record, we are fortunate in not being required to comment upon the propriety of the language complained of. The address to the jury of the defendant's attorney is not in the record; but the plaintiff's attorney insists that the character of his address sufficiently indicates the conditions which he was required to meet as brought on by the defendant's attorney. No objections were made to the remarks complained of, and no rulings of the court were asked thereon by the defendant's attorney. Under ordinary circumstances, the general rule is that counsel cannot remain quiet and seemingly approve of what is being done, or at least to acquiesce in it, and afterwards obtain a reversal of the case because of matters not objected to at the time. The exception to this rule in cases of this kind is well stated by Sullivan, J., in Chicago, B. & Q. R. Co. v. Kellogg, 55 Neb. 748, 76 N. W. 462:
The address of plaintiff's attorney to the jury is quoted at length in the record, and it appears that he continually assumed, at least in this address, that the condition of the record and the prior remarks of the defendant's attorney justified the language which he was using. If a seasonable objection had been interposed to these remarks, this question of justification in using them would necessarily have been presented to the court, and the decision thereon of the learned judge who tried this case would have carried great weight with this court, and the determination of the trial court as to the rights of the respective counsel and the propriety of the remarks complained of would, without doubt, have been regarded and complied with by all counsel interested in the case. We think that without regard to the general character of these remarks, which appears to have run through the entire address, the defendant is not now in a position to ask for a reversal of the judgment on these grounds.
The question whether the judgment is excessive remains to be considered. The defendant contends that the damages allowed by the jury were augmented by an error of the court in an instruction to the jury. The court prepared instruction No. 11 to be given to the jury, in which he told the jury:
The parties entered into a stipulation:
“It is agreed that neither party will except to the formula as a basis upon which to figure the present worth as given by the court in its instruction No. 11.”
After the jury had considered the case for some time, they sent to the court an inquiry in writing:
It appears from the request for information submitted by the jury that the jury had already determined the expectancy of the decedent, and the amount of his contribution to the support of the widow and her children. It was when the counsel attempted to estimate the present worth of the sum indicated by the jury upon the basis of the court's instruction No. 11 that the question arose. Thereupon the defendant's counsel asked to withdraw from the agreement, not to except to instruction No. 11 containing the formula, and asked for time to prepare a showing in support of the application. The court denied “the right to make any further showing at this time,” because the jury after having deliberated for some time had agreed upon the facts necessary to a complete verdict and had merely asked for instruction as to the legal method of calculating the amount of the present worth. It was also stipulated by the parties:
“That in figuring the present worth of a given sum to be paid in annual installments in the future the jury may base their calculations upon the rate of 5 1/2 per cent.”
The plaintiff's counsel contend that the rate of interest at 5 1/2 per cent. is altogether too large, and that, if the stipulation in regard to the formula for computing the present worth was withdrawn and the correct rule for such computation was given to the jury, the stipulation fixing the rate of interest at 5 1/2 per cent. ought also to be changed. There is evidence in the record that these two stipulations were both agreed upon during the trial of the case and that one is the consideration for the other. This evidence, so far as we have observed, is not denied. There is room for a difference of opinion as to the rate of interest that may be obtained upon investments.
There is evidence tending to show that the rate of 5 1/2 per cent. is altogether too large. Because of these two stipulations, the plaintiff neglected to produce evidence as to the proper rate. It may be that if the correct rule of computing the present worth had been given to the jury, instead of the rule agreed upon as announced in instruction No. 11, and evidence had been taken as to the usual rate of interest upon such investments, the result would have been substantially the same. That is, it seems to have been assumed by counsel that one stipulation would offset the other, and perhaps they were not far wrong in so considering. At all events, the court was right in refusing to allow one stipulation to be withdrawn and the other to stand.
[4] The defendant asked the court to instruct the jury that:
“The children at a...
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