Riera Coronas v. American Railroad Co. of Porto Rico

8 P.R. Fed. 109

Opinion

Hamilton, Judge,

delivered tide following opinion:

This cause comes on to be beard upon objections of tbe plaintiff to a proposed bill of exceptions tendered by tbe defendant.

1. Tbe first objection to tbe allowance of tbe bill is that no exception was taken by tbe defendant, and no motion made by tbe defendant at tbe conclusion of plaintiff’s evidence, for a nonsuit. Tbe contention is tbat, tbis being so, there is no bill of exceptions to be settled. Tbis does not appear to be well taken. It might well be tbat there was no objection to be made to tbe admission of tbe evidence and no propriety in moving for a nonsuit. There might have -been enough in tbe case to go to tbe jury, and yet, nevertheless, tbe court might commit an error in regard to a charge upon tbis evidence. Tbat, as I understand it, is what is alleged was done. A part of tbe charge of the court is thought by tbe defendant to be erroneous, and it wishes to take tbat up for review by the circuit court of appeals.

2. Tbe second objection taken is tbat, even if exceptions bad been taken, tbe evidence is not fully set out, and citation is made to Third Rose’s Oode of Federal Procedure, 2938. Tbis is not well taken if it requires, as it seems to, tbat all tbe evidence on all tbe points be set out in tbe proposed bill. What is sought to be reviewed is one point on tbe evidence and one point on tbe pleadings, and only tbat is required which would throw light upon those two points, so tbe second objection is not well taken.

3. The third is that the testimony relating to pecuniary losses is not fully set out, that being one of the points upon which review is sought. This point is conceded to be correctly taken, and the defendant is amending his proposed bill so as to set out the necessary evidence on this head.

4. The next is as to the charge of the court. The court thinks that, while it is not essential, it would be better if the whole charge were set out in each writ of error, because one part refers to another that it is difficult to dissect the charge. •

5. Another objection is that the evidence should be inserted by question and answer, as otherwise the bill would become a statement in the nature of a special verdict. It does not appear that this is well taken. The wish of all appellate courts and proper practice seems to be to get before the court the substance of the evidence, and not necessarily the form. So as relates to question and answer, the point is not well taken unless it relates to- a particular question or answer, — which does not seem to be the case here.

The defendant will conform its bill of exceptions to these views.