Up jumps the other lawyer. "I move to strike out as a conclusion."
The witnesses have testified to slightly different facts than what
were stated in the pleadings. "I move to amend the pleadings to
conform to the proof," says the lawyer.
"I move for an adjournment on the ground of surprise," says the other.
Of course the statement of the conductor is a conclusion of fact. But
if the other side wants to find out how he tried to stop the car, let
him ask what was done. "Did he turn on the brake handle? Did he switch
on the emergency?" A man does not have to be an expert to say that the
car was going fast; he may be examined as to what he considers to be
fast. Nor does he have to be an expert to say that eggs are rotten,
that butter is rancid, that there has been a war in Europe, that a man
has a broken leg or looks sick or acts queerly, that the fish is stale
or the cow was red.
The motion to strike out does not affect the jury, the testimony still
remains on the jurors' minds. The verbal memory stays. Neither does
the motion to amend the pleadings affect the jury. What have they got
to do with it? If the papers are amended it is not important from
their standpoint.
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