Tonopah daily bonanza. [volume] (Tonopah, Nev.) 1906-1929, 1910-06-28
NOTION FOR
n NEW TRIAL is DENIED
BY THE COURT
Judge Averill Decides That Railroad is
Not Entitled to Another Hearing in
Damage Suit.

was clearly in the province of the
jury 20 say that the Injury en-
titled the plaintiff to all he asked |
for. The jury is not called upon
in all cases to effect a sort of CON-
promise by giving the plaintiff a |
part of what he asks for; neither
does a plaintiff in all cases ask a
great deal more than he expects to
get.
The affidavits offered to show i'm
proper conduct of Attorney Cole
and Juryman Smith simply show,
if accepted as uncontradicted, which
is not the case, that the attorney
was very indiscreet, exceedingly
thoughtless. However, if jobbery
was contemplated, it is hardly con-
ceivable that a restaurant would be
day and in the presence of many.
| come now to consideration
of what is to my mind the most
serious feature of the situation and
the one most likely to entitle the
defendant to a new trial-~the con-
duct of Attorney Cole before the
jury. Two errors are assigned-his
calling attention to the rejection of
Testimony and his comparison of
the defendant corporation with the
Standard Oil company. Both were
/ undoubtedly wrong and objectiona-
BILE, and no attorney should, in
the intensity of his desire to win a
case for his client. permit himself
to give such range to his argument
as to transgress the rules that
should be we'll known to him. Ev-
} cry attorney is allowed some lati-
y tude in his argument, bat should
be careful to keep within proper
bounds it would be better If at
, torneys took no latitude, TOR in the
: heat of argument it is not always
easy to stop before going roo far.
: In this instance l can't believe
that the jury was preJudiced
against the defendant by the re-
marks They are the kind of men
upon whom mere talk has little eff
: feet, and they all knew the i'm
. pulsive nature of Attorney Cole.
: They are men we'll able to make
up their minds for themselves. and
; no doubt paid little attention to. the
oratorical outbursts of Mr. Cole and
: still less to remarks of this charac-
ter. | do not see how the firs'
remark could have done more than
call attention to the fact that an
= objection was sustained to a GER
? tain question, which must have
? been the case when the objection
5 was made; the jury certainly had
enough experience in the trial OF
3 this case, even If they had nc
Y other. to know that objections are
! often made and often sustained for
Q reasons that grow out of the rules
of evidence and not because the
I, lauestion objected to necessaril!
$ mean that its answer will be unfa
$ vorable to the objector. II the at
torney had attempted to state the
: evidence that was thus prevented
0 from being given, he would have
: gone altogether too far, but he die
d not. In my opinion he was not a
e an justified in going as far as he
n did but do not look upon this
y conduct as SO serious that 1t JUS
/ titles a new trial If the reference
n to the Standard Oil had any effec
0 on the Jury it was not that O
{ causing them to render verde
in favor of the plaintiff but rath
u er that of leading them to set tn
9 amount of damages high-a situa
t ton over which the supreme cour
/ has ample control. | look upon i
as upon other features of Mr.. Cole
9 argument-a taking of all the latl
II tude he could possibly be entitled
e to by a young attorney, impulsiv
and anxious to win. but withou
II serious effect on a jury composed
of men we'll able to do their owl
u thinking and not easily swdyed D.
the word painting in such case.
The motion for a new trial !
y denied.
Is MARK r. AVERILL,
II District Judge