Deane v. Denver & Rio Grande R. R.

Mb. Justice Seabs delivered the opinion, of the court. It is undisputed that the goods delivered to and paid for by appellee did not comply with the agreed specifications. There was evidence which warranted the jury in finding that the safes delivered afforded less security and were of less value than the safes specified, and that the difference amounted to as much as $1,395. The verdict not being against the weight of the evidence, it only remains to consider questions of procedure at the trial. Counsel urge that the judge presiding at the trial made improper comment upon one of the witnesses. The abstract shows the following as having taken place: Q. “ How long would it take you to open a safe made as that safe is made 2 ” Mr. Beck: “ Objected to.” The Court: “ If this man doesn’t know, it would be hard to get a.man who does know.” ' Mr. Beck: “ I will take an exception.” The comment of the court is subject to criticism, for it might lead the jury to give an undue weight to the testimony of the witness, who was an expert called by appellee. But we can not determine from the record that the exception was taken to the language of the judge rather than to the ruling of the court upon the admissibility of the testimony. Counsel argue now as if the exception was to the former, but the conclusion to be drawn from the record is that it was an exception to the ruling upon the objection to the testimony proffered. The trial court would not naturally regard the exception thus generally taken as applying to anything other than the ruling upon the evidence. Hor does it appear whether the attention of the court was directed to the matter upon motion for a new trial. We are of opinion that if counsel desire to avail of any error in language of the court when ruling upon admissibility of evidence, a specific exception to the language used should be preserved. The testimony in question was that of an expert and related to the security of one of the safes in controversy. We think it was competent to show how readily the safe could be forced open, especially when this evidence was followed by other testimony to show what in comparison would be the resistance to like efforts if the safe had been constructed according to the contract. It is urged that the court erred in permitting an answer to the following question: “ What was the general workmanship—the finish of those safes?” The objection is that the finish of the safes was not in question. The answer of the witness, however, disposes of the objection; for the answer is limited to construction, and that was in controversy. It is also urged that there was error in the ruling of the trial court as to admissibility of evidence of the cost to the manufacturer, of making the safes as delivered compared to the cost of making such safes as were contracted for. Ainsworth testified that there was a substantial difference between the cost of safes delivered and such safes as were specified. To this there was objection, but no exception. Gregg was examined upon this subject as follows: Q. “ What would be the difference in cost to manufacture these safes delivered to us, from the cost of the safes demanded by these specifications, if you know? ” Objected to, and objection sustained. Q. “ Would there be a material saving in making these safes as they are made, and making them according to specifications ? ” Objected to. The Court: “ So far as your knowledge extends, you may answer that question.” To the ruling of the court defendants excepted. A. “I think there would be a saving of from forty to fifty per cent.” Objected to. Q. “ That you haven’t been asked. I simply asked you whether there would be a saving ? ” A. “ There would be a very material saving.” To the last question no objection was made. But if the prior objection and exception be treated as sufficient and not waived by permitting the later question to be answered without objection, yet we are not inclined to view the admission of this evidence as so prejudicial to appellants as to constitute reversible error. It is true that the inquiry was not material. The issue was as to whether the safes delivered answered to the specifications, and, if not, the difference in value. The cost to the manufacturer could afford no criterion by which to determine these questions. While in some instances cost may be properly inquired into upon cross-examination of a witness who has testified to a value, it could not here be an item of affirmative proof to establish value or compliance with specifications. But upon consideration of the whole evidence, we are of opinion that the admission of this testimony, if objection to the same was not waived by counsel, is not such error as ought to cause a reversal of the judgment. The one answer to which the exception can be considered to apply, merely states that “ there would be a very material saving ” in the construction of such safes as were delivered. It' was conceded that the specifications were not fulfilled. Competent evidence was presented, which showed the details of variation and the differences in value. We think appellants were not prejudiced by the admission of the testimony. The court ruled correctly in excluding an answer to the question put to the witness, Cory, in this same connection, viz., the comparative cost of constructing straight and conical bolts. Finally, it is contended that the verdict is excessive. There were thirty-one of the car safes, for six of which appellee paid $155 each, and twenty-five for which it paid $150 each. The testimony of Buzzell, who was a dealer, showed them to be of the value of $80 each. The difference upon the car safes alone was an amount larger than the damages awarded. There were twenty station safes for which appellee paid $160 each. The testimony of Hobbs showed them to be of the value of about $75 each. The difference upon the station safes alone was greater than the award of the jury. The jury may have properly credited this testimony. We can not say that the verdict is against the weight of the evidence either as to the fight to recover or the amount awarded. The judgment is affirmed.