Morgenstein v. Nejedlo

Lyon, J. Three errors are assigned as grounds for a reversal of tbe judgment. These will be stated and considered in their order. 1.' On tbe trial, Dr. Brett, a practicing physician and surgeon, who treated tbe plaintiff professionally for tbe injuries complained of, was called as a witness by tbe plaintiff. On bis direct examination be was asked, as an expert, what would b.e tbe probable effect upon plaintiff should be be unable to breathe through bis nose.' Tbe question was objected to for tbe reason that there was no evidence that tbe blows inflicted by tbe defendant produced that result. Tbe objection was overruled, and tbe testimony received. Tbe objection is based on an erroneous view of the testimony. Tbe proof is that since be was struck by defendant tbe plaintiff cannot breathe, freely through one nostril, and before tbe question was put to Dr. Brett plaintiff testified that when be takes cold be is unable to breathe through tbe other. Tbe doctor bad also testified that such would be the effect of a cold. lienee tbe hypothetical question to Dr. Brett was based upon the testimony, and tbe court properly overruled the objection to it. 2. On bis direct examination as a witness in bis own behalf tbe defendant was asked whether, before be struck. [391] plaintiff, lie had some quarrel with him, and whether he had been informed a short time before that plaintiff said, “ I will fix Nejedlo if it takes me all my life.” The court sustained an objection to the testimony. It is not necessary to determine whether the ruling is erroneous, for the reason that on his cross-examination defendant testified that when they were moving along the street and quarreling plaintiff told defendant he was going to fix him, and also that before such time plaintiff threatened to fix him if “ it takes as long as he lives.” Thus the testimony first, rejected was afterwards received, and this cures any possible error in the ruling rejecting it. 3. The remaining error assigned is upon the ruling of the court refusing to submit to the jury the question of justification under the answer of son assault demesne. The testimony has been attentively examined, and we fail to find any which, if true, would justify a finding of justification. Under it the jury could not have found that plaintiff intended to attack defendant, or that the latter had any reasonable ground for apprehending such attack. When first struck the plaintiff was standing upon the sidewalk with both hands in the pockets of his pantaloons, and the defendant, who commenced the altercation, and was doubtless very angry, had to leave his wagon and go several feet to get to plaintiff. There was no existing emergency which required him to go to the place where plaintiff was standing. True, a witness testified that plaintiff made a motion to strike defendant, but afterwards explained that this was done by shaking his shoulders,— his hands then being in his pockets. We think no one can read the testimony candidly and intelligently without being convinced by the undisputed facts that the defendant had no reason to fear an attack by plaintiff, and that his attack upon the latter was without legal justification or excuse. Hence we conclude [392] that the court did not err in refusing to submit the question of justification to the jury. By the Court.—The judgment of the circuit court is affirmed.