Even though parts of his testimony might have been irrelevant, no objections were made at the time the questions were asked. It is our opinion that there was no prejudicial error, inasmuch as the trial judge in his instructions repeatedly made it clear as to the standards of care required of each of the doctors involved. As to the status of a motion to strike testimony admitted without objection, this court said in Kouri v. Olson-Keogh Produce Co. 191 Minn. 101, 253 N.W. 98, where such a motion was denied, that there was no error. We have considered the record in this case with great care, being fully cognizant of its importance not only from the standpoint of the doctors, who constantly perform great humanitarian services for the benefit of their patients, and the hospitals, which furnish a necessary haven for sick and injured people, but also from the standpoint of the patients and the public as well. It is elementary that as an appellate court we cannot pass upon fact situations; we can only determine whether the law has been properly applied.
In some cases the finding of liquor in the car has been held properly admissible, but there was evidence either of intoxication or that the driver had been drinking. See Kouri v. Olson-Keogh Prod. Co., 191 Minn. 101, 253 N.W. 98; Kull v. Advance-Rumely Thresher Co., 209 Wis. 565, 245 N.W. 589. In such cases proof of the presence of liquor strengthens the evidence of intoxication or drinking.
Motion to strike evidence which was admitted without objection is discretionary with the Court and a refusal to strike is not error. ( Priestly v. Law (N.M.) 262 P. 931; Krzywosz v. Crummett (Mich.) 282 N.W. 853; Brown v. Montgomery Ward Co. (Cal.) 286 P. 474; Kouri v. Olsen-Koegh Prod. Co. (Minn.) 253 N.W. 98.) Permitting an amendment to a pleading during the course of the trial is discretionary with the trial court.
The defendant having failed to object to the reading of the testimony of the deceased witness into the record, and the introduction of the transcript in evidence, the trial court did not err in denying the motion to strike. Cretors v. Troyer, 63 N.D. 231, 247 N.W. 558; State ex rel. Olson v. Royal Indem. Co. 44 N.D. 550, 175 N.W. 625; Hogen v. Klabo, 13 N.D. 319, 100 N.W. 847; Kouri v. Olson-Keogh Produce Co. 191 Minn. 101, 253 N.W. 98. The defendant urges that the evidence is insufficient to sustain the verdict of the jury.
The photograph has been examined by us. It was identified by one of plaintiffs' witnesses who said that the scene portrayed in the photograph "is the way it looked when they were jacked up," referring to the street cars immediately after the accident. In view of the fact that defendant introduced four different photographs of the same cars, after they had been separated from the debris and moved to separate locations, it does not seem to us that there can be any doubt about the propriety of permitting this photograph to go in. See Kouri v. Olson-Keogh Produce Co. 191 Minn. 101, 253 N.W. 98. Admittedly the scene is what it portrays, the location and condition of the cars before being moved except that they were "jacked up" to permit the removal of the injured plaintiffs from the wreckage. The next claimed error relates to the admission in evidence of certain items of hospital and medical expenses.