evidence. I mentioned the contentions to show what the claims are in their arguments and in their evidence. In other words, the plaintiff makes a contention. If that is all he does, there can be no recovery on a contention. But he makes his contentions first, and the defendants make their contentions first, and then they follow those contentions with evidence. It is the evidence which controls'. The jury received proper instructions and this reason must be dismissed.
The next reason is that 'The Court's iteration and reiteration of the plaintiff's version of the accident tended unduly to invoke sympathy of the jury'. As the trial judge stated in his charge 'the defendants' contention can be stated in a few words, while the plaintiff's cannot be. The burden is on the plaintiff all the way through, and that very fact requires an analysis of the plaintiff's claim, dividing it up, and the fact that more time is taken really shows that more burden is on the plaintiff'. This was adequately covered and this reason must be dismissed.
The next reason is that 'The Court used language implying there could be an inference of wanton negligence of persons operating the engine, without reference to any individual'. The trial judge charged 'Wanton negligence or gross negligence here would be when the engineer or person in charge of this engine had become aware in time of the plaintiff's predicament, of his peril, and he disregarded that knowledge, and with the knowledge of the plaintiff's peril continued instead of stopping'. This was a sufficiently adequate description without reference to the person in charge of the engine by name. No harm was done the defendants and this reason must be dismissed.
The next reason is that 'The Court impliedly, and in words, said the jury must decide in favor of the plaintiff'. No reference is made to any specific portion of the charge to support this reason. No such portion of the charge can be found. This reason must be dismissed.
The defendants further allege that in his charge to the jury the trial judge unduly detracted from defendants' points for charge from point 1 to point 7, inclusive. Each of these points was affirmed. In referring to the subject matter of the points the trial court explained each point to the jury and instructed that although that particular point was affirmed it was the duty of the jury to weigh the testimony, determine the credibility of the witnesses, the interest or disinterest of each witness and the questions of fact involved in order to arrive at the truth, in accordance with the instructions in the general charge. There was no error committed and these reasons must be dismissed.
The last reason assigned is that 'The Court did not respond to the defendants' exceptions (551-558), by curing the therein indicated errors and defects in the charge'. At the time the exceptions were presented the trial judge carefully considered the contents thereof and before the jury retired gave additional instructions based upon the exceptions. This matter was adequately covered and no error was committed. This reason must be dismissed.
The remaining reasons are those numbered five to twelve, inclusive, on page four of 'Defendants' Specific Assignments'. These reasons consist of allegations that the trial judge made insinuations in favor of the plaintiff; that he belittled the credibility of defendants' witnesses; that he belittled the value of a number of witnesses as to a fact; that he brought foreign subjects into his charge to the detriment of the defendants; that he did not clearly define the issues, and other similar matters, all without foundation in fact. These reasons must also be dismissed.
And now, March 19th, 1945, the motion to set aside the verdict and for judgment for the defendants is dismissed. The reasons assigned in support of the motion for a new trial are dismissed and a new trial is refused. The Clerk of the Court is hereby directed to enter judgment on the verdict after giving ten days' notice hereof to counsel of record.
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