Perth Amboy evening news., 1910-09-08
To
PAY $1,000
Loses Appeal for New Trial
in Case of assault
on CottreIl.
CHIEF JUSTICE OPINION

Special to the EVENING NEWS.
Trenton, Sept. 8:-Holding that
the jury in the Middlesex county
court was justified In finding a YER
dict OF $1,000 damages in favor of
Herbert Cottrell in his suit against
Asbury Fountain, Chief Justice Gum
mere has filed in the supreme court
an opinion discharging Fountains
rule to show cause why a new trial
should not be granted.
Cottrells suit was an action for
an assault and battery. The assault
was committed on or near a public
road in Middlesex county where
Fountain was employed with assist
ants in opening a culvert under the
road which had been filed up by the
plaintiff in order to prevent 1t from
venting waters upon his adjacent
property. The assault was admit
teddy unprovoked, and the court left
1t to the jury to say whether the
plaintiff was entitled to recover ex-
emplary damages as well as COM
p~ensation. The jury awarded Cot
trell $1,000.
Fountain sought a new trial on
the ground that the verdict was ex-
cessive beyond a reasonable COM
pensation for Cottrell's injuries. The
chief justice in his opinion says:
'If this be the fact then 1t necessar-
lily follows that the excess beyond
compensation was awarded by the
Jury by way of punishment OF the
defendant, and the jury was justified
under the charge Of the court In SO
dealing with the case. There is no
contention on the part Of the defen-
dant that this portion Of the charge
was not warranted by the proofs"
The defendant also asked for a
new trial on the ground that the
court below erred in excluding GER
tain testimony offered to show that
Fountain was opening the ~culvert
Freeholders. On this point the chief
Justice says: THE assault being I'M
provoked, it's malicious character
did not at all depend upon the fact
that the defendant was legally au-
thorized to prosecute the public
work upon which he was engaged at
the time when he committed It.
Moreover, If We had concluded that
the exclusion of the testimony was
erroneous, the defendant could
have taken nj benefit therefrom, for
the error was corrected by the sub
seQuent action of the trial court, at
the close of the defendants case, in
reversing the ruling complained of.
THE defendant objected to the
following hypothetical question put
to q witness, namely: What would
be the effect, Doctor, of a man run
ming nearly three-quarters Of a mile
and suddenly doused in q ditch of
water and mud, the clothes becom-
ing saturated; what would be the
effect as to producing cold?' An
swer: 1T would be q shock to his
system and make him more suscepti-
BILE to taking cold This was one OF
the grounds OF seeking a new trial
on the contention that being a hypo-
thetical question, 1t did not contain
all the facts in the case. The chief
justice holds that the question was
entirely unobtectionable.
THE last reason for asking a new
trial was that the court below erred
in not charging the jury with this
request, submitted to him: If the
plaintiff remained standing for ten
minutes. or half an hour, and by rea-
son thereof contracted a cold, OF 9TH
er injuries, he can't recover there
for from defendant, If he could have
avoided 1t by going home" Chief
Justice Gummere holds there was no
error here, because there was no
proof submitted to the jury from
which 1t could have determined that
the plaintiff could have avoided the
consequences specified in the request
by going home.
Former Judge Charles r. Cowen-
hoven and Alan H. Strong represent
ed Cottrell, while Senator George 8.
Silzer appeared for Fountain.