Sweeney v. Cumberland County Power & Light Co.

• Decision Date: 31 January 1916
• Citation: 96 A. 385,114 Me. 367
• Parties: SWEENEY v. CUMBERLAND COUNTY POWER & LIGHT CO.
• Court: Maine Supreme Court

96 A. 385

114 Me. 367

SWEENEY

v. CUMBERLAND COUNTY POWER & LIGHT CO.

Supreme Judicial Court of Maine.

Jan. 31, 1916.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by Ralph S. Sweeney, by next friend, against the Cumberland County Power & Light Company. To a ruling excluding evidence, plaintiff excepts. Exceptions overruled.

Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, and HANSON, JJ.

Hinckley & Hinckley, of Portland, for plaintiff. Howard R. Ives, of Portland, for defendant.

BIRD, J. This is an action on the case in which the plaintiff, by his next friend, seeks recovery of damages for personal injuries suffered by plaintiff while attempting to board a car operated by defendant and alleged to have been occasioned by its negligence. The presiding justice directed a verdict for defendant, and plaintiff excepts to a ruling excluding evidence offered by him.

It appears from the bill of exceptions that:

"The plaintiff testified, in substance, that the car stopped at one of the regular stopping places on Commercial street near its junction with Park street, in Portland; that he walked along the side of the car and attempted to board at the rear and while it was at a stop; that, while his hand was on the handle provided for that purpose and one foot on the step, the car started, and the conductor at that moment pushed him; that he was thrown to the ground; that the head end of the car went a little way around the corner of Commercial and Park streets, where the track turns up hill into Park street, which intersects Commercial street at a right angle, and stopped with its head end around the corner up the hill; that the rear end of the car was then nearly a car length from him as he lay on the ground before he got up, and that the conductor alighted and came back to him, and that he then boarded the car. The defendant introduced the testimony of the motorman, conductor, and five passengers to the effect that the plaintiff attempted to board the car when it was moving quite rapidly; that it had been so in motion for a considerable distance back; that after the plaintiff fell the car was stopped, and that the entire length of the car when so stopped was on the straight track on Commercial street, and was not partly around the corner of Park street, as appears from report of their testimony made a part hereof. The plaintiff then called three witnesses in rebuttal, namely, George Howard, John Joseph Conley, and a third witness, all of whom had been in court during the entire trial, for the purpose of showing that the car was at a stop when the plaintiff attempted to board it, that the accident took place as claimed by the plaintiff, where the accident took place, and where the car was when it stopped after the accident.

"The evidence of these witnesses was excluded by the court upon objection made by defendant for the reason as the court stated that this testimony should have been offered as part of the plaintiff's case in the first instance, that the testimony merely tended to corroborate the testimony of the plaintiff, and that the testimony was not rebuttal. To the exclusion of this testimony the plaintiff duly excepted. which exceptions were at that time allowed."

In Dane v. Treat, 35 Me. (1853) 198, this court, while recognizing the right of the trial judge to direct in what stage of a case a party shall introduce his testimony, stated that "it has not been the practice * * * to preclude a party that has once stopped in the introduction of his evidence from presenting further testimony of a cumulative character," and it is there held that a party who has rested his case may introduce further, though merely cumulative, evidence, unless before resting the court notifies him that such testimony will not subsequently be received. See, also, Moore v. Holland, 36 Me. (1853) 14, 15; Erskine v. Erskine, 64 Me. (1874) 214; Yeaton v. Chapman, 65 Me. (1876) 126, 127. In the commonwealth of Massachusetts, however, it was stated in 1848 that the order in which witnesses are to be examined on a trial at bar and the number which a party is allowed to call to the same point are matters within the discretion of the judge. Cushing v. Billings, 2 Cush. (56 Mass.) 158. In the course of the opinion Shaw, C. J., says:

"The orderly course of proceeding requires, that the party whose business it is to go forward should bring out the strength of his proof, in the first instance; but it is competent for the judge, according to the nature of the case, to allow a party who has closed his case to introduce further evidence. This depends upon the circumstances of each particular case, and falls within the absolute discretion of the judge, to be exercised or not as he may think proper."

We consider this case to declare...