Parker v. Elgin

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 tMs 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, be did nothing whatever to put his ear under control or to slow up the speed of his ear until the boy was in the act of falling on the street car track. It was'then too late to stop Ms ear in time to prevent injury. T. O. Vinton, Jr., was a passenger on this ear. 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 tMs 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 Ms 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 because11 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 Mm why.” Mr. Holmes: “We except.” The record does not disclose that counsel stated to the court the answer expected. Rule 11 of tMs 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. TMs 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. [564] 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 he, 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 ease. 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 testimony of the witness was clear, intelligent, and unambiguous. There were no other facts and circumstances within the knowledge of the witness than those detailed in hfs testimony, that would place him in better position than the jury to form an opinion of the peril to these children from the approaching ear or the duty of the motorman after their location upon the street and their conduct became apparent to him when he was still five hundred feet away. For this reason the opinion of the witness was not competent evidence. It was also insisted upon the part of the plaintiffs in error that the trial court erred in its charge to the jury and in refusing to give plaintiffs’ request. No exceptions were taken to any part of the court’s charge,, nor was exception taken to the refusal of the court to charge as requested. The record, .therefore, does not present these questions. Guerini Stone Co. v. Carlin Constr. Co., 248 U. S. 334, 348, 39 S. Ct. 102, 63 L. Ed. 275; United States v. U. S. Fidelity Co., 236 U. S. 512, 529, 35 S. Ct. 298, 59 L. Ed. 696; Pennsylvania Co. v. Sheeley, 221 F. 901, 905, 137 C. C. A. 471; Eaton v. Clabaugh, 251 F. 575, 163 C. C. A. 569; Glynn v. May (C. C. A.) 271 F. 464; Simmons Hardware Co. v. Railway Co. (C. C. A.) 279 F. 929. It is urged, however, upon the part of plaintiffs in error, that a reviewing court may notice a plain error not assigned. Un•der rule 11 of this court, that may sometimes be done to prevent a gross miscarriage of justice, yet nothing appears in this record that would justify this court in departing from its general rule requiring litigants, in fairness to the trial court and in furtherance of the dispatch, of judicial business, to present every question to the court upon the trial of the cause. The plaintiffs in error have had a full and fair trial by jury. The charge of the court substantially covered every proposition contained in the request and specifically called the jury’s attention to the law in reference to the duty of the motorman and the degree of care he should exercise • for the protection of children of such immature age that they cannot be expected to exercise such care for their own safety as would be expected and required of persons of more mature years. The overruling of a motion for a new trial is not reviewable by an appellate court except for an abuse of discretion. Simmons Hardware Co. v. Railway Co., supra. It is clear that the trial court, in overruling the motion for a new trial, did not abuse its discretion. For the reasons stated, the judgment of the District Court is affirmed.