Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-06-14
Supreme Court

uelLS.
l. In an action for damages alleged
to have been caused by the negligence
of defendant, railroad company in that
it's platform was 0ver-cr0Wded with
baggage, express and freight; that
said platform was insufticiently light
ed and that the deceased while NOV
ing along this platform tripped over
some obstruction and fell upon the
track in front OF a moving locomotive,
Held, that evidence sought to be in
troduced showing the condition of the
platform for considerable length OF
time prior to the accident, as proper
ly excluded as not in the proper order
of proof. where no proof had been
made of the manner in which deceased
met death, and no testimony intro
duced tending to prove that the accl-
dent was caused by reason of the
condition of the platform; and further
that where this testimony was subse-
quently admitted, if there was error
in the prior ruling it was cured by
UGH admission.
2. Held. that statement made by
deceased to physician between thir-
ty minutes and one hour after an ac-
cident occurred and made at hospital
some distance from the place OF the
accident after deceased regained con-
seriousness, was not part of the
res gestae. where the physician stat
Gu that the deceased might have Civ
en- his name at the platform before
being removed to the hospital. and
| hot hn fr,1 ,,,hn hn
where he was going before making
the statement in question. And where
it does not appear that the statement
was volunteered but may have been
in response to questions asked. and
that it was not il. the nature of an
exclamation forced by shock of the in
jury, and that it does not appear to
have been made even under stress or
nervous excitement produced by the
accident. Held, further, that such
statements. even though admitted in
evidence, was not sufficient proof as
to the cause of the injury to make
question for the jury, there being no
further evidence in the case tending
to prove such fact, such statement be-
ing as follows: 81 was going to Por-
tai; it was dark; and either STUN
bled or was crowded off the platform
"Where witness has been called
twice and each time examined under
direct, cross and redirect examination,
held, that it was within the discre-
ton of the court. and therefore not
error. to exclude his testimony upon
being called back the day following
and being asked questions which he
had testified fully to heretofore. where
it is not shown that his answers would
have been different. or that he de-
sired to change the same in any par
ticular
(Syllabus of the court)
Appeal from district court Of Ward
county. Goss, Judge.
Action by Mary A. Cebus against
Minneapolis, Saint Paul 4 Sault Ste.
Marie Railway Company. From
judgment in favor of defendant. and
from an order denying a new trial,
plaintiff appeals.
Affirmed.
Charles ID. KelsO, L. ]. Palda, c. D.
Aaker and John f. Greene for ap-
pellant.
John L. Edrall for respondent. "a.
H. Bright. of counsel)
Opinion by Fisk, F. f., Special
Judge.
Goss, judge, being disqualified, Hon.
frank f. Fisk. judge of the Eleventh
judicial district and w. J. Kneeshaw,
Judge of the Seventh judicial district,
sat with the court by request.
State of North Dakota, respondent,
VS.. Simon Knudson. appellant
l. Counsel. in argument to the jury
must confine himself to the evidence
in the case and should not go beyond
the limits of legitimate argument and
comment thereon.
2. Where the defendant alleges
misconduct on the part of the states
attorney in his argument to the jury |
and relies on the same ground for
renewal, he must first seasOnably !
obtain ruling from the trial court |
thereon, requesting the court to take
action by reprimand to the counsel,
instructions to the jury. or other suit
able action, and if the instructions
given do not sufficiently cover the
point raised he should request, in
writing, additional instructions.
3. The evidence examined and,
held, that the statement of counsel
was baseu on the evidence in the case.
(Syllabus by the court.)
Appeal from district court of Mel
son county. Templeton, Judge.
Simon Knudson, convicted of fel-
ony for selling intoxicating liquors as
a second offense, and appeals.
Affirmed.
Bangs & Robbins, ATTORNEYS for
appellant.
Andrew Miller, attorney general,
and Alfred Zuger, and C. L. Young, !
assistant attorney general, for the
respondent.
Opinion by Burr. special Judge.
BY request, Hon. A. C. Burr, Judge
of the Ninth judicial district, partici !
pated in the above entitled case.
SCREENS.
With warm weather here you will
need screens. We are selling screen
doors and windows at special low
prices. and will call and measure