Akalitis v. Philadelphia & Reading Coal & Iron Co.

Second Circuit

Akalitis v. Philadelphia & Reading Coal & Iron Co.

239 F. 299, 152 C.C.A. 287, 1917 U.S. App. LEXIS 2217

Court of Appeals for the Second Circuit·Decided January 9, 1917·No. No. 136·Published

Opinions

COXE, Circuit Judge

(after stating the facts as above). [1] The absence of briefs makes it exceedingly difficult to deal with the questions argued. The testimony to which objection is made by the plaintiff in error found at folios 135 to 141 inclusive and folios 348 to 359 would seem to be immaterial but in view of what took place at the trial it is clear that its admission was not prejudicial to the plaintiff. It is as follows:

“Q. Is the oldest boy, the 19-year old one here? A. Yes, sir. Q. What is he doing? A. He is working in some factory. Q. What is the age of the next child? A. 17 years. Q. Is it a boy? A. A daughter 15 years old. Q. Is she working? A. She just commenced. Q. Then the rest of the children are not working, are they? A. Pour are going to school.”

The testimony at folio 348 is as follows:

“Q. Have you ever been back to Pennsylvania since you came to New York the first time? A. I was there on a visit. * * * Q. When was it you went back to Pennsylvania on this visit? A. I visited my brother and sisters. Q. When did you go back to Pennsylvania then? A. It was ovdr a year ago. * * * In thd next March it will be two years. * * * It was the first of March. I stayed there three days, and then I come' back.”

If there was anything in this testimony which injuriously affected the plaintiff’s case, we are unable to perceive it. That it was irrelevant and immaterial may well be admitted, but we do not see how it was in the least degree prejudicial.

[2] The summing up by the defendant’s counsel is printed in full in the record. Why this was done does not appear. No reversible error [301]*301can be predicated of what counsel said to the jury as no exception was taken relating exclusively to the language of this address. The question of residence was withdrawn from the jury by the counsel for the defendant. Upon the entire evidence we are satisfied that the questions of' negligence were for the jury to pass upon and that a result has been reached which is justified by the proof.

The judgment is affirmed with costs.

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COXE, Circuit Judge

(after stating the facts as above). [1] The absence of briefs makes it exceedingly difficult to deal with the questions argued. The testimony to which objection is made by the plaintiff in error found at folios 135 to 141 inclusive and folios 348 to 359 would seem to be immaterial but in view of what took place at the trial it is clear that its admission was not prejudicial to the plaintiff. It is as follows:

“Q. Is the oldest boy, the 19-year old one here? A. Yes, sir. Q. What is he doing? A. He is working in some factory. Q. What is the age of the next child? A. 17 years. Q. Is it a boy? A. A daughter 15 years old. Q. Is she working? A. She just commenced. Q. Then the rest of the children are not working, are they? A. Pour are going to school.”

The testimony at folio 348 is as follows:

“Q. Have you ever been back to Pennsylvania since you came to New York the first time? A. I was there on a visit. * * * Q. When was it you went back to Pennsylvania on this visit? A. I visited my brother and sisters. Q. When did you go back to Pennsylvania then? A. It was ovdr a year ago. * * * In thd next March it will be two years. * * * It was the first of March. I stayed there three days, and then I come' back.”

If there was anything in this testimony which injuriously affected the plaintiff’s case, we are unable to perceive it. That it was irrelevant and immaterial may well be admitted, but we do not see how it was in the least degree prejudicial.

[2] The summing up by the defendant’s counsel is printed in full in the record. Why this was done does not appear. No reversible error [301]*301can be predicated of what counsel said to the jury as no exception was taken relating exclusively to the language of this address. The question of residence was withdrawn from the jury by the counsel for the defendant. Upon the entire evidence we are satisfied that the questions of' negligence were for the jury to pass upon and that a result has been reached which is justified by the proof.

The judgment is affirmed with costs.

Akalitis v. Philadelphia & Reading Coal & Iron Co., 239 F. 299, 152 C.C.A. 287, 1917 U.S. App. LEXIS 2217 (2d Cir. 1917).

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