Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-11

brought upon a contract for COM
missions on sale of arms to Turkey,
of which government plaintiff was
then consul general at the port of
New York, and the contract as void,
being corrupt and prohibited by NOR
ality and public policy. Mr.. Justice
Field, in his opinion on this case, at
page 26i says, in substance, that If
il should appear from the opening
statement that the action is brought
to obtain remuneration for acts which
the law declares to be corrupt, i'm
moral, or criminal, after full consid
GRAFTON and ample opportunity for
the party making the statement to
explain and qualify it, if then it clear
ly appears that there can be no re-
covery, the court should not hesi-
tate to so declare: In Tietsch V.
Pietsch, Cent Law Jou. of Aug. s,
1910, Vol. II, 81, a suit in forcible
detainer for the possession of a lot
in Chicago, begun in the municipal
court of that city, based upon the
statement of counsel for defendant,
admitting the legal title of the lot to
be in plaintiff, the court instructed
the jury to render verdict in favor
of the plaintiff The appellate court
for the first district affirmed the
Judgment, and the supreme court of
Illinois, in reversing the case, on this
point said "a party is entitled to
introduce evidence and prove cause
of action or to defend against evil
dence tending to sustain cause of
action if no statement at all is made,
and is not confined in the introduc-
ton of evidence to the statement
made in the opening, if one is made.
The opening statment may be wrong
as to some facts of the case, which
may turn out to be different from
the statement" Also in Fletcher V.
London & Northwestern Ry. Co., 60
L. T. R., COS, an English case for
personal injuries, where the trial
judge nonsuited the plaintiff, for the
reason that the opening statement of
his counsel did not show cause Of
action, it was held that the Judge had
no right to so non-suit plaintiff, ex-
cept by the consent of his counsel.
The practice of granting non
suit, much less the dismissing of the
complaint on the opening statement
has never prevailed in Wisconsin,
and in Haley V. Western Transit Co.,
rs Wis, 344, and cases there cited)
was not permitted, even though the
counsel consented that such state
ment should be considered in con-
nection with the complaint, and
treated as part thereof, but in Kan
sas such practice appears to have
been sanctioned in Lindley v. A. T.
& S. f. Ry. Co., AT Kan, 432.
AS we understand the record in
this case, and the claim of counsel
for defendant, the ruling was based
principally upon the statement OF
plaintiffs counsel that plaintiff was
mot able to see the car, not able to
hear it," Very naturally counsel for
defendant applies this statement as
referring to the time before plaintiff
crossed the tracks By reference to
the direct allegation in the COM
plaint that it was while plaintiff
was in the act of making such cross
ing with his team and light wagon
before mentioned, his view was nee
essarily obstructed by defendants s
aforesaid standing car so as to pre-
vent his observation of another of
defendants cars" and the statement
of plaintiffs counsel, to the effect
that plaintiff was unable to see
through this obstruction, it would
seen that counsel for plaintiff had
in mind the time when plaintiff was
crossing the east track behind the
standing car. We do not understand
that either the complaint or the
statement of plaintiffs attorney in
dicates how far, or what plaintiff
could or could not see or hear before
the time of crossing the tracks.
This case illustrates the danger of
deciding an issue upon so meager a
showing of the facts. Donohoe V.
Portland Ry. l.. G P. Co., 107 Pac,,
964, disposes of the point in regard
to looking and listening adversely to
defendant, where, in the language
used by Mr., Justice Slater, it has
also been held by this court that al
though it is negligence for the trav-
eler not to look or listen for ap-
preaching trains before attempting
to cross a railway track, the law
does not undertake to determine
whether he shall do so at any par
ticular place or given distance from
the crossing. 1t is only required
that he shall look and listen at the
time and place necessary in the ex-
ercise of ordinary care, and this is
generally a question for the jury un-
der all the circumstances of the par