such matters unless he has testified as to them himself. The rule limiting the cross-examination to the general subject-matter of the direct examination is certainly more conducive to the systematic and orderly trial of causes, and it has the further merit as it prevents the cross-examiner from proving by leading questions independent facts by a witness friendly to him who the adverse party is obliged to call. This rule clearly applies when the attempt is made to draw out by cross-examination facts having no connection with the matters stated in the direct examination, but constituting the substantive defense or claim of the cross-examiner."

To the same effect, see Vol. 3, Ency. of Evidence, pages 822 to 843. Also the following authorities: State v. Gray, 79 Pac. [Oregon] 53-4; Richardson v. Spangle, 60 Pac. 64; Schreyer v. Flouring Mill Co., 43 Pac. 723; Rosum v. Hodges, 47 N. W. 140; Sauntry v. United States, 117 Fed. 133; Houghton v. Jones, 1 Wall. [U. S.] 702; McFadden v. Mitchell, 61 Cal. 148; Railroad v. Urlin, 158 U. S. 275; State v. Hawkins, 67 Pac. 84.

FRICK, J.

The respondent brought this action to recover for personal injuries which she claimed to have sustained as a passenger while alighting from a passenger car owned and operated by appellant. The injuries, it is alleged, were sustained through the negligence of appellant in negligently moving the train while respondent was in the act of alighting therefrom. A trial to a jury resulted in a verdict and judgment for respondent, and appellant presents the record for review on appeal.

There are but two questions presented for review. At the trial the court sustained objections interposed by counsel for respondent to certain questions propounded on cross-examination to her husband, who was a witness in her behalf. The witness, in substance, testified that he and his wife (the respondent) and their infant child, on the 8th day of April, 1907, were passengers on a passenger train of appellant; that

they had been attending conference at Salt Lake City, and were returning home on the train to Farmington; that the train stopped at the usual place for passengers to alight therefrom; that when the witness and respondent entered the car at Salt Lake City the seats were all occupied, except at one end of the car back of the car door; that the witness and respondent and their infant child occupied this seat, and, when the train stopped at Farmington, in opening the car door it barred the exit from the seat, and thus prevented the witness and respondent from leaving the seat or the car until all the other passengers had passed out through the door, after which the door was released, and the witness, with the child in his arms, followed by respondent, could then pass out of the car; that the witness and respondent passed out of the car as soon as they could do so, and the witness alighted from the train, and as respondent was in the act of doing so that is, when she was about to step from the car step to the ground-the train was suddenly moved forward. The statement of the witness with respect to how the accident happened is as follows: "The train started with a sudden. jerk as she was in the act of getting off, and it threw her off the second step. She lit on the ground on her right foot. I am not positive of that but she said she lit on the right foot; but she lit and her knees went from under her, and as she went backwards I grabbed her with my left hand. I had the baby in one arm, and as I grabbed her I checked her; if I hadn't done that she would have fallen right under the train." The foregoing substantially covers all that the witness testified to on direct examination. Counsel for appellant proceeded to cross-examine the witness, and after eliciting from him that the respondent at the time of the accident was in good health and that she needed some assistance to get off the train, the following questions were propounded to the witness, namely: "Q. Did she say anything on the way [after leaving the train] to you about being hurt?" "Q. When did she first say anything about being hurt in stepping off the train at this time?" "Q. Did she ever, at any

35 Utah-33

time, say anything about being hurt at this time by stepping off the train?" Counsel for respondent interposed an objection to each of the foregoing questions upon the ground that the facts sought to be elicited thereby were not proper cross-examination. The court sustained the objections, and the appellant insists that these rulings constitute prejudicial

error.

1

While no hard and fast rule can be laid down with respect to what may or may not be proper as part of a crossexamination, yet a general rule has been formulated by the courts which is ordinarily sufficient as a guide in most cases. This general rule is to the effect that the cross-examination should relate to the matters stated by the witness on direct examination, and to the facts and circumstances connected with or related to the matters stated by him. In other words, all matters that may modify, explain, contradict, rebut, or make clearer the facts testified to in chief by the witness may be gone into on cross-examination. Ordinarily, when this field has been covered by the cross-examiner, the right, as an abstract right, to further cross-examine ceases. Beyond this the matter of cross-examination necessarily, to a very large extent at least, must be left to the sound discretion of the trial court. There may be good reasons appearing to the trial court in a certain case, and as it affects a certain or particular witness, why the scope of cross-examination with regard to collateral matters should be either restricted or extended. The answers to the questions propounded in this case could in no way contradict, modify, explain, or make more clear and intelligible anything the witness had testified to on direct examination. Appellant, therefore could proceed further with the cross-examination only, when, in the judgment of the trial court, it was proper under all the circumstances to do so. The court evidently thought this was not necessary, and in our judgment nothing is made to appear that it abused its discretion in this respect. With respect to such matters reviewing courts ought to be very careful, and should hesitate long before reversing judgments upon

2

3

the ground that the trial court either restricted or enlarged the scope of cross-examination.

4.

The assignment that the court erred in refusing a new trial likewise relates to matters which involved the discretion of the court. No complaint is made of any instruction or any error of law occurring at the trial except the one already referred to. We, therefore, could only interfere if it were made to appear that the court abused its discretion in denying the motion. It is urged that, in view that the jury allowed respondent only a small amount by their verdict, when, if they had believed her testimony, she would have been entitled to much more, it is conclusive that the jury did not believe that she was injured as she claimed she was. It is argued, therefore, that the jury did not base their finding upon the ground that she was injured, but rather upon sympathy or upon the ground that appellant should pay her something. It may be that the jury believed that the respondent grossly magnified her injuries and ailments, but the principal fact remains that there was sufficient evidence to sustain the finding of negligence, and that she suffered some injury as a consequence of such negligence. The mere fact that the jury may have been unwilling to believe all that she claimed with respect to her injuries and the consequences flowing therefrom is not conclusive that their finding that she sustained some injury is not well founded. The trial court evidently thought so, and we can discover no legal ground authorizing us to interfere with his conclusion.

5

From what has been said it follows that the judgment ought to be, and it accordingly is, affirmed, with costs to respondent.

STRAUP, C. J., and MCCARTY, J., concur.

BOARD OF HOME MISSIONS OF THE PRESBYTERIAN CHURCH OF THE UNITED STATES OF AMERICA, a Corporation, Plaintiff, v. W. W. MAUGHAN, Judge of the First Judicial District of the State of Utah, Defendant.

No. 2022. Decided April 4, 1909 (101 Pac. 581).

1. PROHIBITION-QUESTIONS PRESENTED ON DEMURRER TO PETITION. In view of Comp. Laws 1907, sec. 3654, authorizing the writ of prohibition to arrest the proceedings of any tribunal, etc., whether judicial or ministerial, when such proceedings are without or in excess of its jurisdiction, the question on demurrer to a petition to prohibit proceedings in a civil case is not whether the facts alleged are sufficient to entitle plaintiff to sue for malicious prosecution or abuse of legal process, but solely whether the court is proceeding without or in excess of its jurisdiction. (Page 520.)

2. PROHIBITION-SCOPE OF REMEDY-RELIEF AGAINST GROSS ERRORS IN PROCEEDINGS. If a court has jurisdiction of a proceeding, mere errors, however gross, in conducting it, do not deprive it of jurisdiction so as to justify prohibition of the proceeding. (Page 521.)

3. PROHIBITION-SCOPE OF REMEDY IN GENERAL. The writ of prohibition will issue only when the inferior tribunal usurps or exceeds the power conferred on it by law, and when there is no other adequate remedy. (Page 522.)

4 PROHIBITION-RELIEF AGAINST GARNISHMENT PROCEEDINGS. Conceding that a garnishment is a malicious abuse or illegal use of legal process, it does not affect the district judge's jurisdiction thereof so as to authorize resort to prohibition. (Page 523.)

5. PROHIBITION-RELIEF AGAINST ABUSE OR ILLEGAL USE. Proceedings in a court of general jurisdiction cannot be arrested by prohibition on the sole ground that the suitor is abusing or illegally using legal process therein; an action for malicious prosecution lies therefor against the offender. (Page 523.)

6. PROHIBITION-ABUSE OF PROCESS-EFFECT ON JURISDICTIONDUTY OF COURT WHEN APPARENT. The mere abuse of legal process cannot deprive a court from retaining jurisdiction of the action in which it is practiced, though it ought to refuse to proceed when the abuse is made apparent. (Page 523.)