Parker v. Elgin

• Citation: 5 F.2d 562
• Decision Date: 15 May 1925
• Docket Number: No. 4155.,4155.
• Parties: PARKER et al. v. ELGIN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

5 F.2d 562 (1925)

PARKER et al. v. ELGIN et al.

No. 4155.

Circuit Court of Appeals, Sixth Circuit.

May 15, 1925.

J. E. Holmes, of Memphis, Tenn. (Phil M. Canale and Holmes & Canale, all of Memphis, Tenn., on the brief), for plaintiffs in error.

Roane Waring, of Memphis, Tenn. (Miles, Waring & Walker, of Memphis, Tenn., on the brief), for defendants in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

It is claimed on the part of the plaintiffs in error that the motorman in charge of this car was negligent, in that although he could see these boys playing in proximity to the track when he was 500 feet away from them, he did nothing whatever to put his car under control or to slow up the speed of his car until the boy was in the act of falling on the street car track. It was then too late to stop his car in time to prevent injury.

T. O. Vinton, Jr., was a passenger on this car. Being about to leave, he came out on the front platform with the motorman. He saw the children playing in the street about 500 feet away. Counsel for plaintiffs asked this witness whether or not the motorman could tell these boys were in peril. The court sustained an objection to this question, but no exceptions were noted. Counsel then asked the witness, "Well, what was it about this situation that attracted your attention?" To this question the defendant objected and the court sustained the objection. Thereupon counsel for plaintiffs said: "All right, now why was your attention attracted towards those boys?" The defendant objected, and the court said: "Yes, he can detail what he saw, but not the impression that was made upon him." Mr. Holmes, counsel for plaintiffs: "I don't want to get any impression that was made upon him." Thereupon the following question was asked: "What was the boy doing that caused you to look at the boys?" The defendant objected to this question on the ground that he had fully stated what the boys were doing. The Court: "Well, I think he has detailed what they were doing. If there is any particular time that you want to direct his attention to." Mr. Holmes: "We except to your honor's ruling." Later the witness was asked by counsel for plaintiffs: "Why were you watching the boys? A. Well, I was just watching them because I was interested in them; they were there. Q. Well, why were you interested in them?" The Court: "Well, I don't think you can put too much speculation into it." Mr. Holmes: "I don't want to put any speculation into it." Court: "Well, you asked him why." Mr. Holmes: "We except." The record does not disclose that counsel stated to the court the answer expected.

Rule 11 of this court specifically provides that when the error alleged is to the admission or the rejection of evidence, the assignment of error shall quote the full substance admitted or rejected. This is the general rule, not only in the federal courts, but in many, if not all, of the state courts. Shauer v. Alterton, 151 U. S. 607, 616, 14 S. Ct. 442, 38 L. Ed. 286; Anderson Lumber Corp. v. Lehto (C. C. A.) 282 F. 488; Camp Mfg. Co. v. Beck (C. C. A.) 283 F. 705.

It is the duty of a plaintiff in error to show affirmatively that error intervened to his prejudice in the trial of the cause. Mercantile Trust Co. v. Hansey, 205 U. S. 298, 306, 27 S. Ct. 535, 51 L. Ed. 811, 10 Ann. Cas. 572.

However that may be, the question whether these boys were in peril, and whether the motorman was in position to see their peril in time to prevent the injury, were the ultimate questions, for the jury to determine from the facts and circumstances established by the evidence. Opinion evidence may be given by a nonexpert witness in many matters where it is impossible to reproduce or describe in words every detail upon which the opinion of the witness is predicated, but this is not such a case. The facts and circumstances preceding the injury were not in dispute. They were of such a nature that they could be readily understood by the jury. The...