Sengebush v. Edgerton
| Decision Date | 27 June 1935 |
| Citation | 180 A. 694,120 Conn. 367 |
| Court | Connecticut Supreme Court |
| Parties | SENGEBUSH v. EDGERTON et al. |
Motion for Reargument Denied Oct. 8, 1935.
Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.
Action by Frank Sengebush against Albert C. Edgerton and others to recover damages for personal injuries, alleged to have been caused by the negligence of the defendants, brought to the superior court in Hartford county and tried to the court. Judgment for the plaintiff against the defendant Mayflower Bus Line; this defendant filed a motion for a new trial on the ground of newly discovered evidence, which was denied and from this decision and from the judgment, this defendant appealed. The defendant Edgerton moved to dismiss the appeal and the motion for a new trial as to him, which was granted. The defendant Mayflower Bus Line filed an application to rectify the appeal, which was denied.
No error.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.
An attorney, though not disqualified, should not be witness in trial of case in which he is counsel, unless emergency arises, making his testimony necessary to prevent injustice.
Philip R. Shiff, of New Haven, for appellant.
Frederick J. Rundbaken and Morris Blumer, both of Hartford, for appellee.
Joseph F. Berry, of Hartford, for defendant Edgerton.
The plaintiff, a passenger in a bus of the defendant company, was injured when it came into collision with an automobile driven by the defendant Edgerton. The two cars were proceeding in opposite directions. The road was very slippery with ice and snow. The trial court has found that just prior to the collision the bus was proceedings along the center of the highway at a speed of some 30 miles, with its left side to the left of the center line of the highway; that the Edgerton car was proceedings on its own right side of the highway at a speed of about 15 miles an hour; that Edgerton, fearing with reason that he did not have room to pass, applied his brakes sharply and, when the cars were less than 150 feet apart, his car started to skid; that the driver of the bus, when he saw this, turned as far to his right as he could; and that the Edgerton car skidded over to its left side of the highway, the two vehicles colliding there. The trial court concluded that the real cause of the collision was the negligence of the driver of the bus, in view of the conditions, in failing to reduce the speed of his car and seasonably turn to the right so as to give Edgerton half of the traveled portion of the highway in which to pass, and that Edgerton was not negligent. The trial court could reasonably reach the conclusions it did upon the finding as made and no change can be made in it which would materially affect those conclusions.
Within six days after the judgment was rendered, the appellant bus company made a motion for a new trial because of newly discovered evidence. Affidavits of three witnesses referred to in the motion were attached to it. At the hearing upon it the trial court requested the appellant to proceed with evidence to establish the allegation in the motion that it had discovered material evidence in its favor, which it failed to discover and was unable to discover before or during the trial, although it had used due diligence. Thereupon the attorney for the appellant stated that he had no witnesses in court upon this issue, but offered himself to testify. The trial court, on objection, ruled that he was not a proper witness and refused to permit him to testify. An attorney should not be a witness in the trial of a case in which he is counsel, unless it becomes necessary in order to prevent injustice where an emergency arises in the course of the trial. Jennings Co., Inc., v. DiGenova, 107 Conn. 491, 497, 141 A. 866. In this instance counsel for the appellant should have been aware that the allegation in the motion was one which, if challenged, he would have to support by evidence and of the rule of professional ethics that he should not himself testify; he cannot claim that there was a situation of emergency within the exception to the rule. Where an attorney has testified in a case in which he also appears as counsel, we do not hold that...
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Ferguson v. Smazer
...motion in the form of exhibits. See cases such as Lancaster v. Bank of New York, 147 Conn. 566, 577, 164 A.2d 392; Sengebush v. Edgerton, 120 Conn. 367, 370, 180 A. 694. The court denied the motion on the basic ground that none of the affidavits sets forth testimony which would be admissibl......
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Cardwell v. Russo, 292068
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