Trenor v. Central Pacific Railroad

By the Court, Rhodes, J.:

Upon the issue as to whether the defendant employed the plaintiff to render professional services as a physician and surgeon in the treatment of the persons injured by the collision, or only to take and receive such persons into the asylum, the evidence is conflicting; and the verdict, therefore, will not be disturbed on the ground of the insufficiency of the evidence to sustain the finding on that issue.

The court did not err in excluding the questions propounded to Dr. Nixon, as they did not relate to the value of services of the 'character of those charged in the complaint.

The defendant challenged Schulte for actual bias, and the challenge was disallowed, and it is now urged that the court erred in that respect. The question presented for determination by a challenge for actual bias is a question of fact, and the decision of the question, if the court comes to the wrong conclusion upon the evidence, is not an error of law, but an erroneous finding of a fact.

And we are inclined to the opinion, though we do not expressly so hold, that the decision is final, and not subject to review either on motion for a new trial or on appeal. But, however that may be, if the decision is subject to review, it is only on the ground that the evidence is insufficient to sustain it. This Court would not, except in the clearest case, interfere with the decision, for the determination of the court below is based more largely than in ordinary questions in litigation, upon the bearing, manner, appearance, etc., of the juror while giving his testimony. We see nothing in this case which requires us to disturb the decision of the court below that Schulte was a competent juror.

There was evidence in the case tending to prove that Cohen, assuming to act as the agent of the railroad company, employed the plaintiff to render his professional services in the treatment of the persons injured by the collision, and that the president of the railroad company was apprised of the action of Cohen and ratified it, and continued him as such agent in that behalf, and this Court cannot say that the evidence was insufficient to justify the jury in finding a ratification by the railroad company of the contract made in its behalf by Cohen.

We see nothing in the charge of the court, or the instructions given or refused, of which the defendant can complain as productive of any injury to it.

Judgment and order affirmed.