Stevenson v. Chicago & Northwestern Railway Co.

Kinne, J —I. It is insisted that, under the circumstances, defendant was not negligent in failing to remove the snow from the cattle guard, and that the finding of the jury in that respect was not warranted by the testimony. If the storm continued all of the day of the accident, and the wind was such as to blow the cattle guard full after it was cleaned, and the attention of defendant’s employes was required to keep its track in condition for the operation of the road in the movement of trains, defendant might well be excused for failing to keep the cattle guard clean of snow and ice. These are facts in dispute; at least, the evidence as to the storm and wind on the day of the accident is conflicting; and while, sitting as jurors, we might have hesitated about holding that the defendant was negligent in failing to keep the cattle guard free from snow, still we cannot say that the evidence does not sufficiently sustain the finding of the jury in that respect. Such being the case, we cannot disturb the verdict on the ground that the finding and verdict were against the evidence. II. Witness Stevenson was asked: “When the horses first turned in that direction, did they act as if there was anything in their way?” He answered: “It seemed to me as if they could see the guard, and hesitated about going over.” Plaintiff objected to the answer, and moved to strike it out, which motion was sustained, and an exception taken. No reason was given by counsel for the motion, and no ground of objection stated to the answer, nor did the court in its rulings indicate upon what the same was grounded. It seems to us, regardless of the question whether the testimony elicited was open to proper objection, that, in the absence of any reason given therefor, the motion should have been overruled. If the court had overruled the motion, we should have sustained its action, on the ground that no reason was stated for the motion. Parties have a right to know upon what grounds a ruling is asked, and, if none are stated, we cannot assume that the court acted properly Upon some ground in fact stated, when the record before us fails to show upon what ground the action of the court was based. We think, however, in this case, that, by reason of the admission of other evidence relating to the action of the horses, the defendant was not prejudiced by the ruling. [721] TTT. The court gave to the jury, on its own motion, certain instructions, and then told the jury “that he gave the following instructions at the request of the defendant,” and read them to the jury. It is said that this was error; that all instructions should be understood as emanating from the court. The plan pursued in this instance is one often followed by trial courts in this state, and, indeed, it seems to be warranted by our statute, and hence we are not justified in saying that it was erroneous. Code, sections 2784 to 2789. We are, however, of the opinion that it is the better practice for the court to incorporate in its charge all instructions asked by either party which it may deem proper to be given to the jury. By so doing, the court is less likely to commit error, and the instructions will be found, as a rule, to present to the jury a clearer and more concise statement of the law applicable to the case. Uniformity of practice in this respect is very desirable. IV. Other errors are assigned. We have examined the entire record, and discover no prejudicial error . — Affirmed.