The Art of Cross-Examination Part 27

With that there was a terrible explosion. Norcross himself was blown to pieces and instantly killed. Mr. Laidlaw found himself on the floor on top of Russell Sage. He was seriously injured, and later brought suit against Mr. Sage for damages upon the ground that he had purposely made a shield of his body from the expected explosion. Mr. Sage denied that he had made a shield of Laidlaw or that he had taken him by the hand or altered his own position so as to bring Laidlaw between him and the explosion.

The case was tried four times. It was dismissed by Mr. Justice Andrews, and upon appeal the judgment was reversed. On the second trial before Mr. Justice Patterson the jury rendered a verdict of $25,000 in favor of Mr. Laidlaw. On appeal this judgment in turn was reversed. On a third trial, also before Mr. Justice Patterson, the jury disagreed; and on the fourth trial before Mr. Justice Ingraham the jury rendered a verdict in favor of Mr. Laidlaw of $40,000, which judgment was sustained by the General Term of the Supreme Court, but subsequently reversed by the Court of Appeals.

Exception on this appeal was taken especially to the method used in the cross-examination of Mr. Sage by Mr. Choate. Thus the cross-examination is interesting, as an instance of what the New York Court of Appeals has decided to be an abuse of cross-examination into which, through their zeal, even eminent counsel are sometimes led, and to which I have referred in a previous chapter. It also shows to what lengths Mr. Choate was permitted to go upon the pretext of testing the witness's memory.

It was claimed by Mr. Sage's counsel upon the appeal that "the right of cross-examination was abused in this case to such an extent as to require the reversal of this monstrous judgment, which is plainly the precipitation and product of that abuse." And the Court of Appeals unanimously took this view of the matter.

The portions of the cross-examination that were especially excepted to were the rejected jurors' conversation with Mr. Sage; the defendant's lack of sympathy for the plaintiff; the article in the _New York World_; the defendant's omission to give warning of the impending explosion, and the defendant's wealth and the extent and character of his business.

_Mr. Choate._ "I hope you are very well this morning, Mr. Sage?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "Do you remember swearing to the answer in this case?"

_Mr. Sage._ "I didn't hear you, sir."

_Mr. Choate._ "Which is your best ear?"

_Mr. Sage._ "This."

_Mr. Choate._ "Do you remember swearing to the answer in this case?"

_Mr. Sage._ "I do."

_Mr. Choate._ "Who prepared it for you?"

_Mr. Sage._ "It was prepared by my counsel."

_Mr. Choate._ "Counsel in whom you have every confidence?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "Prepared after you had given a careful statement of your case to them?"

_Mr. Sage._ "Such statement as I thought necessary."

_Mr. Choate._ "Did you mean to conceal anything from them?"

_Mr. Sage._ "No, sir."

_Mr. Choate._ "Did you read the complaint over with your counsel before you swore to the answer?"

_Mr. Sage._ "I presume I did."

_Mr. Choate._ "Just imagine you were down at the Stock Exchange now, and speak loud enough so that gentleman can hear you."

_Mr. Sage._ "I will endeavor to."

_Mr. Choate._ "Did you read your answer before you swore to it?"

_Mr. Sage._ "I did, sir."

_Mr. Choate._ "It was true, then, was it not?"

_Mr. Sage._ "I believed it to be so."

_Mr. Choate._ "I call your attention to a statement made in the answer."

(Mr. Choate here read from Mr. Sage's answer in which he swore that he was in conversation with Mr. Norcross while Mr. Laidlaw was in the office, Mr. Sage having testified differently the day before.) "Was that true?"

_Mr. Sage._ "I don't know. I didn't catch it."

_Mr. Choate._ "I didn't want you to catch it. I wanted you to answer it.

You observe, do you not, that the answer says that the plaintiff Laidlaw was in your office while you were conversing with the stranger?"

_Mr. Sage._ "I observe that, but I want to state the fact as I did yesterday."

_Mr. Choate._ "Answer my question. Did you observe it?"

_Mr. Sage._ "I did."

_Mr. Choate._ "Put down your fist and answer my question."

_Mr. Sage._ "I answered it."

_Mr. Choate._ "I think we will get along as soon as you answer my questions instead of making speeches. Did you observe that your answer states that before Laidlaw was in the office, and while you were conversing with the stranger, the stranger had already handed you a note demanding money?"

_Mr. Sage._ "He had done no such thing."

_Mr. Choate._ "Do you observe that your answer states that?"

_Mr. Sage._ "Your reading states it so, but the fact is as I have stated it."

_Mr. Choate._ "Was not your answer true as you swore to it?"

_Mr. Sage._ "No, sir; not on your interpretation."

_Mr. Choate._ "How came you to swear to it, if it is not true?"

_Mr. Sage._ "I suppose that was prepared afterward by counsel, as you prepare papers."

_Mr. Choate._ "I never prepare papers. What are you talking about?"

_Mr. Sage._ "You have the reputation of preparing papers."

_Mr. Choate._ "Do you mean that your lawyers distorted the facts from what you stated?"

_Mr. Sage._ "I suppose they prepared the papers in their usual form."