
    No. 294
    McCREE v. HINES, Director General of Railroads, Etc.
    U. S. Dist. Court, N. D. Ohio, W. D.
    ’his opinion 'has not been published except in Abstract.
    IEW TRIAL — (1) Trial court most competent to determine whether verdict was excessive — (2) Failure of engineer to secure proper rest held to 'be proximate cause of accident — (3) Conduct of defense made testimony competent for impeaching purposes — (4) Deposition of witness produc-tible by defense properly excluded — (5_) Rebuke to ! counsel by court justified and not improper in : absence of jury.
    On Motion for New Trial
   QLLITIS, J.

Epitomized Opinion

McCree was severly injured and permanently lisabled as the result of a collision between two ailroad trains and in an action against Hines. Diector General of Railroads, recovered $100,000. P-wo theories of the accident were advanced, one >:eing that the engineer of one of the trains be-ame unconscious from unforeseen causes, and the ither being that said engineer failed to secure a ¿roper amount of sleep, and was not in a fit condition to assume his duties when he took charge if the train. On a motion for. a new trial, sixteen Assignments were made, among which was one that ihe verdict was excessive and indicated passion and And several improper exclusions of evidence. Only tie assignments which have been argued are dealt yith.

Held by District Court in refusing hew trial:

1.The trial court is the most competnent agency or the determination of 'whether an improper relation exists between the compensation advised by the jury and the injuries actually sustained.

2. We see no force in the argument that the conduct of the engineer, imputed, for negligence was too remote to be considered the proximate cause of the injury.

3. The defense so conducted itself by its objections as to make competent, for impeaching purposes only, all of the testimony offered by the engineer that he did not immediately after the accident, advance the explanation of an acute attack beyond his control.

4. The deposition of a witness who could have been produced by the defense in good time was properly excluded.

5. The conduct of counsel for defense was such that a rebuke by the court was justified and the jury_ having been sent out of the room during the administration of the rebuke, it was not prejudicial.  