St. Louis, Iron Mountain & Southern Railway Co. v. Raines , 90 Ark. 482 ( 1909 )

Hart, J.

(after stating the facts). Counsel for appellant assigns as error the action of the trial court in making an order that the cases be “consolidated for the purpose of trial and the two cases are to be tried together.”

This order was made conformable to the act of our General Assembly of May 11, 1905, and we are of the opinion that the court did not abuse its discretion in making the order. The statute was evidently passed to meet just such cases, “in order to save a repetition of evidence and an unnecessary consumption of time and costs in actions depending upon the same, or substantially the same evidence, or arising out of the same transactions.” St. Louis, I. M. & S. Ry. Co v. Broomfield, 83 Ark. 288; St. Louis, I. M. & S. Ry. Co. v. Hardin, 83 Ark. 255.

2. Counsel for appellant assigns as error the action of the court in not directing separate verdicts and in not rendering separate judgments. This the court should have done, as indicated by the ruling in St. Louis, I. M. & S. Ry. Co. v. Hardin, supra. But the appellant is in no attitude to complain of the action of the court in refusing to do this; for it did not save any exception to the ruling of the court on that point. To render an assignment of error available on appeal, an exception must not only be saved at the trial to the ruling of the court, but the exception must be preserved in the motion for a new trial. This has been held so often as to render a citation of authorities unnecessary.

Moreover, the verdict was not as much as was sued for in the case of Sarah J. Raines, and it is not even insisted by counsel for appellant that the verdict was excessive.

3. Counsel for appellant insists that the testimony of W. R. Raines, the husband of Sarah J. Raines, as to the time, place, occasion and manner in which his wife was injured was incompetent. This testimony was competent in his own suit. Railway Co. v. Amos, 54 Ark. 159; Klenk v. Noble, 37 Ark. 298.

Counsel for appellant made only a-general objection to the introduction of this testimony. He should have asked that the testimony should be limited to the case in which it was competent, and that it should speak only in that case. Not having asked that it should be confined to the case of W. R. Raines, in which it was admissible, appellant is not now in an attitude to complain. Bodcaw Lumber Co. v. Ford, 83 Ark. 555. Moreover, the court excluded from the jury all that part of it which was not competent in his own case.

It is- not insisted that there is not sufficient evidence to sustain the verdict, or that the verdict is excessive. Therefore, it is not necessary to make a statement of it.

Finding no prejudicial error in the record, the judgment is affirmed.