Volume 252 — Minnesota Reports

<bold>Carriers — carrier-passenger relationship — person attempting</bold> <bold>to board bus</bold>. <block_quote> 1. When a bus or streetcar has stopped at the usual place for, and is still waiting to receive, passengers, a carrier-passenger relation arises not only when a prospective passenger <italic>in the exercise of ordinary care</italic> has actually entered the vehicle or has placed himself partly or wholly upon the entrance steps or platform thereof, but also prior thereto while he is in the act of <italic>carefully and</italic> <italic>prudently attempting</italic> to board the bus or attempting to step upon its entrance platform or steps, it the bus operator then knows, or <italic>in the exercise of ordinary care</italic> ought to know, that such person is attempting to board the vehicle.</block_quote> <bold>Trial — instructions — refusal to give requested instruction</bold>. <block_quote> 2. Although a party is entitled to a specific instruction on his theory of the case if there is competent evidence to sustain it and the instruction is properly requested, such instruction need not be given<page_number>Page 76</page_number> in the particular form requested and it may even be denied if the substance of it is adequately covered by the charge as a whole.</block_quote> <bold>Carriers — duty of driver of bus</bold>. <block_quote> 3. Upon the facts the bus driver's duty to observe the presence of passengers and prospective passengers before he closed the gates and started the bus could not be qualified or neutralized by any assumption on his part as to the exercise of care by others.</block_quote> <bold>Evidence — admissibility — hearsay — res gestae —</bold> <bold>discretion of court</bold>. <block_quote> 4. Whether a statement, upon the facts of the particular case, constitutes a part of an act or transaction so as to be admissible in evidence as a part of the res gestae rests in the sound discretion of the trial court.</block_quote> <bold>Same — same — portions of deposition</bold>. <block_quote> 5. Where only a part of a deposition is used for impeachment, any party, pursuant to Rule 26.04(4), Rules of Civil Procedure, may introduce the other parts <italic>but only in so</italic> <italic>far as such other parts of the deposition are admissible</italic> <italic>under the applicable rules of evidence</italic>.</block_quote> <bold>New trial — grounds — misconduct of counsel</bold>. <block_quote> 6. The matter of granting a new trial for misconduct of counsel is governed by no fixed rules but rests almost wholly in the discretion of the trial court, and its action will not be reversed upon appeal except for a clear abuse of discretion.</block_quote> <bold>Witnesses — expert — conflict in opinions — jury question</bold>. <block_quote> 7. A conflict in the opinions of expert witnesses is to be resolved by the jury, and in determining the comparative weight to be given to the respective expert opinions, the jury may consider the qualifications of each expert and the source of his information.</block_quote> <bold>New trial — grounds — excessive damages</bold>. <block_quote> 8. Whether a new trial should be granted or refused on the ground of excessive or inadequate damages rests in the sound discretion of the trial court.</block_quote>

<bold>Coram nobis — function</bold>. <block_quote> The function of a writ of coram nobis is to correct a judgment in the same court in which it is rendered for errors of fact which do not appear in the record; which are unknown at the time of the trial without fault to the court and to the party seeking relief; and which, if known, would have prevented rendition of the verdict. <italic>Held</italic>, the district court properly denied appellant's petition for a writ of coram nobis when the alleged facts which were sought to be corrected were within the appellant's knowledge at the time of the trial and when none of his constitutional rights were violated.</block_quote>

<bold>Deeds — rights acquired by grantor — distinction between</bold> <bold>"reservation" and "exception."</bold> <block_quote> 1. A right acquired by the grantor by <italic>reservation</italic> in a deed stands upon the same footing as that which is acquired by direct grant or conveyance; but whatever is excluded from the grant by <italic>exception</italic> remains in the grantor as a retention of a part of his former title.</block_quote> <bold>Fixtures — constructive severance — effected by exception in</bold> <bold>deed</bold>. <block_quote> 2. A constructive severance of fixtures, inclusive of buildings, so as to constitute them personalty, may be effected by an exception contained in a deed of conveyance.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. The owner of the fee, as an inherent part of his right of dominion over the land may, by an express or an implied agreement with another, constructively sever buildings and fixtures from the land and thereby convert them into personalty.</block_quote><page_number>Page 270</page_number> <bold>Deeds — reservation of right to remove building — effect of</bold> <bold>failure to exercise</bold>. <block_quote> 4. The reservation in a deed of a right to remove the building within one year from the date of the conveyance (inclusive of any extension thereof) gave to plaintiff a mere right to enter upon the land to remove the buildings. His neglect to exercise that right within the stipulated time could not effect or work a forfeiture of the title to the house which he had retained by excepting it from the conveyance.</block_quote> <bold>Insurance — fire insurance — increase of risk — relevance of</bold> <bold>"moral risk."</bold> <block_quote> 5. Any so-called "moral risk" resulting from financial reverses of the insured subsequent to the issuance of a policy has no legitimate bearing upon the defense issue of an increase of risk.</block_quote> <bold>New trial — general verdict — one of several issues</bold> <bold>erroneously submitted</bold>. <block_quote> 6. Where several issues of fact are tried and any one of them is erroneously submitted to the jury and a general verdict is returned, the losing party is entitled to have the verdict set aside and to have a new trial, unless it conclusively appears as a matter of law that other party was entitled to the verdict upon other grounds.</block_quote>

<bold>Juvenile delinquents — criminal prosecution — jurisdictional</bold> <bold>requirements</bold>. <block_quote> 1. Under this court's construction of M.S.A. c. 260 in State ex rel. Knutson v. Jackson, <cross_reference>249 Minn. 246</cross_reference>, <cross_reference>82 N.W.2d 234</cross_reference>, before district court acquires jurisdiction to try juvenile charged with commission of felony, there must be compliance with provisions of § <cross_reference>260.08</cross_reference>, giving juvenile court original jurisdiction over all juveniles accused of crime.</block_quote> <bold>Same — same — effect of invalid proceedings in district</bold> <bold>court</bold>. <block_quote> 2. Failure to comply with provisions of c. 260 prior to trial of juvenile indicted for felony in district court renders proceedings in latter court invalid but would not prevent such juvenile from being subsequently tried by court of competent jurisdiction on charge since previous proceedings could not be regarded as jeopardy for same offense.</block_quote> <bold>Same — same — same</bold>. <block_quote> 3. Where juvenile of age of 17 years was tried, convicted, and sentenced for crime of first-degree murder by district court without first having been submitted to jurisdiction of juvenile court pursuant to c. 260, <italic>held</italic> such district court proceedings invalid and juvenile was unlawfully imprisoned and should be discharged subject to right of state to now prosecute him in district court for crime with which he was charged since he no longer has status of juvenile.</block_quote> <bold>Same — same — jurisdictional requirements</bold>. <block_quote> 4. Whether juvenile court in its discretion is empowered to refuse to order prosecution of juvenile for commission of felony under § <cross_reference>260.21</cross_reference> need not now be considered since such action is not involved in proceedings here.</block_quote>

<bold>Automobiles — South Dakota "guest statute" — owner of vehicle</bold> <bold>as guest</bold>. <block_quote> 1. Where two couples travel together in the automobile owned by one of the parties for the mutual pleasure of all parties, the mere fact of ownership of the automobile does not prevent the owner from being a guest of the operator under the South Dakota "guest statute" under the facts of this case.</block_quote> <bold>Pleading — facts in issue — alleged fact admitted in</bold> <bold>responsive pleading — litigation by consent</bold>. <block_quote> 2. Where an essential fact is alleged in a complaint and admitted to be true in a responsive pleading or at the request of the pleader under Rule 36 of Rules of Civil Procedure, that fact no longer is in issue until the pleader takes some action by way of amendment of the pleadings, request for submission of the issue to the jury, or otherwise. Failure to object to a single question inconsistent with the admitted fact is not enough to establish an implied consent to litigate the admitted fact by consent.</block_quote>