* * * went down. I was standing about 15 to 18 the same, as testified to by Page. Page testi. fied that his duties required him to be on the slope at almost all hours of the day; but Smith contradicts him in this respect, as follows: "I don't know what business Mr. Page had at any time on that slope. Not in reference to doing any work on that slope that I know of. There was nothing there for him to do in any, way, shape, or manner. * * Page hadn't any work on the slope at any time. Mr. Page had no instructions to go back and forth; he could order his pipe or supplies brought down by the trip rider.' He (Smith), however, appears to be in turn contradicted by Webb, whose testimony in the matter is abstracted as follows: "Q. Now, Mr. Page was your pumpman? A. Yes, sir. * Q. Don't that pipe line go out this slope where you haul the coal? A. the old slope. Q. It comes part of the way on No, part of the way, and part of the way on the slope where you haul the coal? A. Yes, sir. Q. If that pipe got out of order, Page had Louis Evans and Stephen Gobo to go up there and fix it? A. Yes, sir; sure. were both together, at the ton. Gobo pushed. And in doing that he had to go upon the the block out. Gobo hollered down, 'Is every- slope? A. If he fixed the pipe; yes, sir. Q. thing all right? He took the chain down from Now, practically, that was the sole and only the loaded cars. He threw the chain down, duty that Mr. Page had, was to take care of about two feet, and then Louie Evans jumped the pump and pipe line? A. No, he had more down, and coupled the four empties, and then and everything like that. Q. Did the air pipes than that. He had to look after the air pipes, he hollered at that man, if he is ready. I seen him going between the cars; I can't say that he go up and down the slope? A. Yes, sir; the coupled them. I know that three were coupled, main air pipes. Q. So, if he had any trouble because they stood after the accident. He stop- with those main air pipes, he had to go on the ped the engineer right away as the front car slope? Q. He had to in working hours? A. Well, I never run off. * seen him. Q. It wasn't what you saw? A. Yes, sir; yes. Q. If he had to repair those things during work hours, he had to go on the slope, whether you saw lor wanted to repair rollers, he had to go on the him or not? A. Yes, sir. Q. Now, if Mr. Tayslope in working hours to do it? A. He had. Q. Whether you saw him or not? A. Yes, sir; whether I saw him or not. Q. And he kept the rollers in repair? A. Yes, sir." Accidents of this kind had previously happened on the slope, and the dangers of being or working on the slope were well known to the deceased and other employés; but it was testified to by witnesses for the plaintiff that the men continued to assume the risks upon the promises of the officials of the company to improve conditions and to make the necessary improvements to avoid the dangers complained of. The witnesses referred to are Mr. Frank Smith and Mr. Percy Brillheart, who testified that they, as representatives of the union, discussed the dangers complained of with Mr. H. H. Smith, foreman, and Mr. John Webb, superintendent of the mine, and Mr. Watson, general manager of the company. Mr. Webb, however, testified, as a witness for the company, that he never had any conversations with the witnesses named, except as to man-cars and a manway. Webb and Smith both testified that general instructions were given that no one was allowed to travel the slope during working hours, and that, prior to the accident, written notices to the same effect were posted; but at least four witnesses for the plaintiff testified that no such notices were posted until after the accident, and even Webb and Smith contradicted each other as to the place where said notices were posted, Smith testifying that they were posted on the side of the slope, and Webb testifying that they were posted on the front of the slope. Smith denied having instructed Taylor to repair any rollers the morning of the accident, or having talked to Page about Taylor repairing A. Sure. Under the foregoing condition of the record, we apprehend that it would be rather difficult to organize an impartial jury that would not find the defendant guilty of negligence, and especially in allowing the runaway car to escape from the tipple. "In actions of this character it is not necessary to show by eyewitnesses that the deceased came to his death because of negligence on the part of the defendant and freedom from negligence by the deceased. These matters may be their existence may fairly and logically be inproven by showing circumstances from which ferred." Hotchkiss Mt. M. & R. Co. v. Bruner, 42 Colo. 305, 309, 94 Pac. 331, 332. [2] The jury found the issues for the plaintiff on somewhat conflicting evidence, and such a finding is binding on this court. Big Five T. O. R. & T. Co. v. Johnson, 44 Colo. 240, 241, 99 Pac. 63. We have examined the numerous assignments of error, including those directed to improper testimony and to the instructions, and find none of them sufficiently serious to warrant a reversal of the judgment. [3] Defendant's assignments of error 1, 2, and 3, urging the misconduct of plaintiff's counsel (appearing at the trial in the district court, but not upon this review) wherein the Juror Tobias, on his voir dire examination, was asked, "Do you know Mr. Felker or Mr. Dickinson, who represent the Ocean Insur- HURLBUT, J. (dissenting.) My dissent ance Company in this case?" have given the to the majority opinion is based solely upon a court serious concern. The assumption of conviction that it is in direct conflict with counsel that Messrs. Felker and Dickinson the prior decisions of our Supreme Court. represented the Ocean Insurance Company in The interrogatory propounded to the juror the case was voluntary and without any jus- upon his voir dire, and upon which the validtifiable excuse. There was no evidence what-ity of the judgment hinges, was as follows: ever to support the assumption, and the "Q. Do you know Mr. Felker or Mr. Dickincourt must conclude that the purpose of son, who represent the Ocean Insurance counsel was an endeavor to prejudice the minds of the jury by informing them that the Ocean Insurance Company had obligated itself to pay the damages sustained, and that a judgment against the defendant would be without injury to it. Such conduct was not ethical, and was very reprehensible. It was If a controlling question of fact in this case rested upon evidence that was quite equally balanced, or if the condition of the evidence was such as to make it probable that such extraneous matter wielded a controlling influence over the minds of the jurors then it would be the duty of the court to reverse the judgment. In Coe v. Van Why, 33 Colo. 315, 321, 80 Pac. 894, 3 Ann. Cas. 552, the Supreme Court held it error for counsel, without any evidence upon which to base his statement, to comment in his argument to the jury upon the custom of mining companies to protect themselves against liability on account of injuries to their employés by taking out insurance, in insurance companies, against such liabilities. also held in the same case that the error was not cured by an instruction from the court to disregard the comments of counsel. How ever, in that case, the court said there were several closely contested questions of fact, and that there had been one mistrial of the cause. In Tanner v. Harper, 32 Colo. 156, 165, 75 Pac. 404, when the jurors were being impaneled, counsel for the plaintiff stated to them that an insurance company was the real party in interest. The Supreme Court held that the great weight of the evidence favored the plaintiff and showed affirmatively that the defendants were not injured by such statement, and that it appeared from the record that there were no close questions of The Company in this case?" The question was The spond to any judgment that might be renderIed against defendant; in other words, that the Parkdale Fuel Company was only the nominal defendant, while the insurance company was the real defendant in interest. The commanding issue in the case to be tried by the jury was as to whether or not the defendant had been guilty of negligence in causing the death of plaintiff's husband. record shows that the widow and children of deceased were present at the trial and testified. This fact of itself would have a tendency to enlist the sympathy of the jury for the misfortune overtaking the widow and orphans through the deplorable death of their protector. Under these circumstances, common justice required that defendant be accorded a fair and impartial trial of the issues, withFrom the state of the record in the instant out the interpolation of any inadmissible matcase, it may well be said that the evidence is ters which would tend to prejudice its rights. such that, in all probability, the same verdict Can it be said with even reasonable certainty would have been returned by the jury had that defendant could hope for an unbiased counsel not been guilty of the reprehensible and dispassionate consideration by the jury conduct of asserting, by inference at least, of the question of negligence, as between itto the panel of jurors on a voir dire exam- self and plaintiff, if the jury believed, and ination, that counsel for defendant represent- had good reason to believe, that no verdict ed the Ocean Insurance Company, and there- which they would render in favor of plaintiff fore it may be logically said that in this case would in the slightest degree affect the Parkit affirmatively appears from the record that dale Fuel Company, but any judgment foundthe verdict was not the result of the miscon-ed thereon would have to be paid by one of duct of counsel, but is sustained by sufficient the great insurance companies of the counevidence, and the judgment is therefore af- try? firmed. fact in the case. The case of Coe et al. v. Van Why, 33 Colo. sonal injury action wherein plaintiff's coun- vided it appears they are pertinent, are made in sel, in his argument to the jury, commented good faith, and for the purpose of excluding on the custom of mining companies, in pro- those who, by reason of interest in the result, from the panel partial or prejudiced persons, or tecting themselves against liability on ac- would be incompetent. * In announcing count of injuries to their employés by taking this rule, we would not be understood as deout insurance; there being no issue upon the parting in the slightest degree from the salutary matter. The trial court immediately admon- 315 [SO Pac. 894, 3 Ann. Cas. 552], where it one announced in Coe v. Van Why, 33 Colo. ished counsel and instructed the jury to dis- appeared that the statement of counsel in arguregard such statement, and not to consider it ment that the defendant was insured in an emfor any purpose. The Supreme Court, how- ployers' liability company was made for the ever, held that such admonition and instruc-in favor of the plaintiff, and not to elicit inpurpose of prejudicing and influencing the jury tion did not cure the error, saying: formation touching their competency to sit as jurors in the case." "We are satisfied that the unfavorable impression on the minds of the jury was not removed by the direction of the court to disregard the statement. Counsel knew when he made it that it was improper and reprehensible, and it is fair to presume that he would not have done so, had he not supposed that some advantage to his client would thereby be gained. In such cases counsel who thus seeks to obtain that result takes upon himself the risk of losing what he hopes to secure. The following, among other cases, are authority for the reversal of the judgment for such conduct of counsel"-citing cases. In the instant case the trial court not only failed to clearly sustain the objection or reprimand plaintiff's counsel for propounding the interrogatory in question, but it in no way admonished the jury at that time or subsequently that the interrogatory was improper and that they should disregard the same for any purpose in deliberating upon their verdict. By failing to do so, I think the court was remiss in its duty, and its silence in that behalf emphasizes the error and prejudice suffered by defendant thereby. It must be apparent from what has just been said that the error committed was more aggravated than in the Coe Case. The trial court had four opportunities (emanating from motions made by defendant's counsel) to discharge the jury and grant a continuance or new trial; the first of said motions being made while the jury were being impaneled, the second at the close of plaintiff's testimony, the third at the close of the trial, and the fourth in the hearing upon motion for new trial. In each instance the court denied the motion. "There was no such issue in the case, and it was clearly error to overrule the objection made. * * # As was said in substance in Coe v. Van Why, 33 Colo. 315 [80 Pac. 894, 3 Ann. Cas. 552], in such case counsel who thus seeks to obtain an advantage for his client takes upon himself the risk of losing what he hopes to secure. Cases should be tried before a jury on competent testimony. The rights of litigants can only be preserved by adhering to this rule, and when a party to an action insists on getting before a jury testimony which is incompetent and is intended to prejudice the rights of his adversary, he does so at his peril, when, as in the case at bar, the testimony on the issues made by the pleadings is conflicting, or is of that character that different conclusions of fact might be deduced therefrom." From the three decisions last cited it seems to be settled in this jurisdiction that in cases of this kind it is reversible error to propound to veniremen such questions as we are now considering, when the matter inquired of is not in issue, and it appears to be equally prejudicial whether the objectionable information imparted to the jury in evident bad faith reached it by interrogating veniremen, addressing the jury, or examining witnesses. Vindicator Con. C. M. Co. v. Firstbrook, 30 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108, was another personal injury case, in which As I analyze the Coe Case, it is decisive the veniremen, being examined upon their of this appeal in favor of appellant upon the voir dire, were asked, over objection, if they first three assignments of error. That case were interested as agents or otherwise, or is rendered more emphatic as authority upon ever had been interested, in the Frankfort the point by reason of its being cited and Marine Accident & Plate Glass Insurance followed in the subsquent cases to which I Company; no such issue being involved. The have alluded. These cases are binding upon Supreme Court decided that the questions this court, and there is nothing left for it were proper, but adhered to and reaffirmed to do but follow the rule there laid down. in no uncertain language the doctrine laid The general situation, as to facts and cirdown in the Coe v. Van Why Case, saying: cumstances in the instant case, as I under"In the selection of jurors counsel are al- stand it, appears to be not substantially diflowed considerable latitude not only for the pur- ferent from that of the cases cited. We pose of ascertaining whether grounds exist for challenges for cause, but, also, for the purpose ought not to disregard the supreme authority. of intelligently exercising peremptory chal- Our Supreme Court is far from being alone lenges. Such questions are for the purpose of in the rule it has adopted. On the contrary, eliciting information from, and not imparting it to, the jurors. They are not barred, however, it is supported by a multitude of authorities though directed to matters not in issue, pro- of high standing, as the following list will disclose: Fuller Co. v. Darragh, 101 Ill. App., such order. So upon these issues there was 664; Hordern v. Salvation Army, 124 App. Div. 674, 109 N. Y. Supp. 131; Frahm v. Siegel-Cooper Co., 131 App. Div. 747, 116 N. Y. Supp. 90; Manigold Co. v. Black River Traction Co., 81 App. Div. 381, 80 N. Y. Supp. 861; Donnelly v. Younglove Lumber Co., 140 App. Div. 846, 125 N. Y. Supp. 689; Sawyer v. Arnold Shoe Co., 90 Me. 369, 38 Atl. 333; Emery Dry Goods Co. v. De Hart, 130 Ill. App. 244; Hollis v. U. S. Glass Co., 220 Pa. 49, 69 Atl. 55; Kentucky W. Mfg. Co. v. Duganics (Ky.) 113 S. W. 128. There appears to be an exception to the rule stated in the Coe Case, which is that, notwithstanding the error germinated by counsel's misconduct, if there are no close questions of fact, and the record affirmatively shows that the same was not prejudicial to defendant, such error will not work a reversal. In recognition of the exception the case of Tanner v. Harper, 32 Colo. 156, 75 Pac. 404, may be cited. That was a personal injury case in which plaintiff's counsel told the jury, while it was being impaneled, that a certain insurance company was the real party in interest, to which objection was made and sustained; the court telling the jury that they should disregard counsel's remark. The Supreme Court held that such statement was not reversible error, provided the record affirmatively showed that defendant was not prejudiced thereby, and proceeded to say that: "The great weight of the testimony on the question of the negligence of defendants in constructing the track, and also on the subject of the alleged contributory negligence of the plaintiff, was overwhelmingly in favor of the latter. So it appears from the record that there were no close questions of fact in the determination of which the jury might have been unconsciously influenced by the consideration of extraneous and improper matter." * Comparing that case, as to issues of fact and proofs, with the one before us, I find the situation is entirely different. I do not think it can be fairly said in the case at bar that there are no close questions of fact involved. On the contrary, it seems that all the material issues being tried were sharply contested. There was sufficient evidence to have well sustained a verdict for defendant, had the jury so found. On the question of negligence and contributory negligence the testimony on the part of defendant shows that deceased was positively instructed by Webb, the manager of the mine, to not go into the incline at any time during working hours, and that for weeks prior to and at the time of the accident printed or written notices to that effect were posted at the portal of the incline, easily observable by all persons entering the same. On the other hand, plaintiff's testimony tends to show that no such notice was posted, and further that Webb told deceased to go into the incline at the time he did and fix the roll. Webb denied that he ever gave deceased any a close question of fact. As to the question said here, as in that case, that: * The most that can be fairly contended by either party is that the evidence was about The Tanequally balanced on these issues. ner Case preceded the Coe Case, and the Supreme Court had the former before it when it announced the rule stated in the latter. I think the judgment should be reversed and cause remanded. (19 N. M. 467) STATE v. GONZALES et al. (No. 1680.) (Supreme Court of New Mexico. Nov. 28, 1914.) (Syllabus by the Court.) 1. CRIMINAL LAW (§ 1038*)-APPEAL-PRESENTATION BELOW-INSTRUCTIONS. It is well settled in this jurisdiction that a party, who intends to assign error upon an instruction given by the court of its own motion, or upon request of the adverse party, must either tender to the court an instruction which correctly states the law, and except to the refusal to give such instruction, or he must, by his exception to the proposed instruction, call the attention of the trial court specifically to the error in the instruction proposed to be given, in order that the instruction may be corrected and the error avoided. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.*] 2. CRIMINAL LAW (§ 1159*) — APPEAL · DICT EVIDENCE. VER be disturbed in the appellate court when it is Ordinarily the verdict of a jury will not supported by any substantial evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3074-3083; Dec. Dig. § 1159.*] 3. CRIMINAL LAW (§ 417)-DECLARATIONS OF THIRD PERSONS-RES GESTÆ. Declarations of a party, other than the defendant, which formed no part of the res gestæ, are not admissible in evidence in behalf of the defendant, although they may relate to the ad-stated counsel should have pointed out specifmission of the party that he committed the of-ically wherein such instruction was misleadfense with which the defendant stands charged. ing, ambiguous, and contrary to law. Having [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.*] Where a party asks for a new trial on the ground of newly discovered evidence, he must show that such evidence could not have been discovered prior to the trial by the exercise of due diligence. failed to take proper exceptions to this instruction, appellants cannot avail themselves here of claimed defects, not called to the attention of the trial court. [2] As to the second assignment, it is sufficient to say that the evidence was conflicting. Two witnesses who testified for the state identified the defendants as the men who [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2318-2323; Dec. Dig. fired the shots within the settlement, at the 939.*] Appeal from District Court, Chaves County; John T. McClure, Judge. Jesus Gonzales and others were convicted of discharging a pistol within the limits of a settlement, and appeal. Affirmed. O. O. Askren and J. C. Gilbert, both of Roswell, for appellants. Ira L. Grimshaw, Asst. Atty. Gen., for the State. time specified in the indictment. The defendants both attempted to prove an alibi. The jury preferred to believe the evidence offered by the state. Ordinarily, the verdict of a jury will not be disturbed in this court when it is supported by any substantial evidence. Candelaria v. Miera, 13 N. M. 360, 84 Pac. 1020; Territory v. West, 14 N. M. 546, 99 Pac. 343. The verdict in this case is supported by substantial evidence. Hence there is no merit in this assignment. ROBERTS, C. J. Appellants were tried [3] In their motion for a new trial, apand convicted of discharging a pistol within pellants allege that since the rendition of the limits of a settlement in Chaves county. the verdict they have learned that Jose la Error is predicated on three grounds, which Riva had a conversation with one Jose Garmay be stated as follows: (1) The court err-cia, wherein the latter told the former that ed in giving instruction No. 10 to the jury. he (Jose Garcia) had fired the shots "which (2) The verdict is contrary to the evidence. the defendants were charged with having (3) A new trial should have been granted on fired," and that, if granted a new trial, the the ground of newly discovered evidence. defendants would prove that Jose Garcia By the tenth instruction the court under-fired the shots which defendants are chargtook to define "reasonable doubt." The de-ed with having fired. And the motion for a fendants excepted to this instruction in the new trial also states that another witness following language: would testify that Garcia told him that he (Garcia) fired the shots in question. The motion was supported by the affidavit of Riva, in which was set forth the conversation had by him with Garcia in which he stated that he had fired the shots for which the defendants in this case were being prosecuted. On this branch of the case, it is sufficient to say that statements made by Garcia, to the effect that he fired the shots, could not have been properly admitted as evidence on the trial. It was only hearsay and inadmissible. Declarations of a party other than the defendant, which formed no part of the res gestæ, are not admissible in evidence in behalf of the defendant, although they may relate to the admission of the party that he committed the offense with which the defendant stands charged. 1 Wharton, Crim. Evid. 452; Holt v. State, 9 Tex. App. 571; Daniel v. State, 65 Ga. 199; Smith v. State, 9 Ala. 990; Welsh v. State, 96 Ala. 92, 11 South. 450; State v. Hack, 118 Mo. 92, 23 S. W. 1089. Such evidence being inadmissible, it follows that the court committed no error in denying the motion for a new trial on this ground. "Defendants except to instruction numbered 10 for the reason that the same does not clearly, concisely, and accurately state the law in de fining reasonable doubt; that said instruction is ambiguous, misleading, and contrary to law." [1] It is well settled in this jurisdiction that a party who intends to assign error upon an instruction given by the court of its own motion, or upon request of the adverse party, must either tender to the court an instruction which correctly states the law (Territory v. Gonzales, 11 N. M. 301, 68 Pac. 925; Territory v. Leslie, 15 N. M. 240, 106 Pac. 378; Territory v. Pettine, 16 N. M. 40, 113 Pac. 843; Territory v. Trapp, 16 N. M. 700, 120 Pac. 702), and except to the refusal to give such instruction, or he must, by his exception, call the attention of the court specifically to the error in the instruction proposed to be given, in order that the instruction may be corrected and the error avoided (Territory v. Lobato, 17 N. M. 666, 134 Pac. 222; James v. Hood, 142 Pac. 162). The above exception, it will be noted, fails to point out specifically the error in the instruction. It is true it is stated that the instruction does not clearly, concisely, and accurately state the law in defining reasonable doubt; but wherein it fails in this regard is not set forth. It is also stated that the instruction is ambiguous, misleading, and contrary to law; but under the rule above For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [4] Appellants filed a supplemental motion for a new trial on the ground of newly discovered evidence, wherein they alleged that Pedro Barrera fired the shots that defendants were convicted of having fired, and that |