43 A. 63 | R.I. | 1899
The plaintiff was seriously injured while alighting from a passenger train on the defendant's railroad at Westerly, in this State, on the evening of December 6, 1898, and this action was brought to recover damages for the alleged negligence of the defendant, whereby it is claimed the injury was occasioned. At the trial of the case in the Common Pleas Division the jury found in favor of the defendant, and the case is now before us on the plaintiff's petition for a new trial on the ground of certain alleged erroneous rulings of the court during said trial.
The first error alleged is the refusal of the court to allow George F. Wells, a witness called by the plaintiff, to answer the following question, viz.: "Whether or not the station at Westerly was well lighted evenings last fall, before and after this accident?" We think the ruling was correct. It was immaterial whether the station was well lighted at the indefinite times stated in the question, before and after the happening of the accident. The allegation in the declaration is that it was not properly lighted at the time of the accident, and the evidence offered was too remote and indefinite to have any bearing upon that question. Moreover, the evidence fails to show that the condition of the station, with regard to its being well lighted or otherwise, had anything to do with the accident. The testimony of the plaintiff is that when "Westerly" was called she got up and went to the door and opened it and went out upon the platform, when a sudden move of the train threw her off on the right side, *265 which was the side opposite to the station; that it was "between dark and light" at the time, and that she did not look for or see the station at all. She also testified that the train was at a stand-still, or that she thought it was, when she went out upon the platform and attempted to alight, but the jury have found that the train was in motion at that time.
The second exception taken was to the refusal of the court to permit the witness George F. Wells to answer the following question, viz.: "Whether you have been on that train when, by the way the brakes were put on and taken off, you were deceived and went to the door, thinking the car was still?" This was clearly inadmissible, both as being wholly indefinite as to time, and also that it had relation to other occasions than the one in question.
In support of the admissibility of the testimony offered, the plaintiff's counsel argues that he had a right, as bearing upon the question of the defendant's negligence and also upon that of the contributory negligence of the plaintiff, "to show all the facts connected with and surrounding the accident," namely, that it was dark, that the station was poorly lighted, and that it had been poorly lighted both before and after the accident. His general proposition is doubtless correct. He had the right to show all the facts and circumstances surrounding and connected with the accident. But he had no right to show facts and circumstances connected with other accidents or other occasions, as they were merely res inter alios, and would therefore tend to raise collateral issues, to the inevitable prolongation of the trial and the probable confusion of the jury. Robinson v.Railway Co., 7 Gray, 92; Collins v. Dorchester, 6 Cush. 396; Balto. S. Ry. Co. v. Woodruff,
In Maguire v. Railroad Co.,
The third exception is to the ruling of the court in permitting the witness Mary H. Card, called by defendant, to state whether she called the attention of her husband to the plaintiff as she was leaving the car. The witness had testified that she was a passenger in the car with plaintiff; that while the train was moving quite fast the plaintiff got up and went out of the car and went off, or down, the steps at the right side, and that the reason witness took particular notice of her was the fact that the train was moving quite fast, and that "she got off so quick." Witness' husband had testified that he noticed that when the station was called plaintiff got right up and went to the door and opened it and went down the steps on the right side of the car, and that she seemed to be in a hurry to get out. It is to be observed that the witness was not asked for any conversation which took place with her husband, but simply as to the fact whether she called his attention to the plaintiff. So that it can hardly be said, we think, that plaintiff's contention that it was hearsay testimony is correct. The truth or falsity of the statement or suggestion made by witness to her husband was not the point in question, but simply the fact that it was made. 1 Greenl. Ev. 13 ed. § 123. But, even conceding that it was hearsay, and that the court erred in admitting it, yet we fail to see that the plaintiff was prejudiced thereby or that it is sufficient ground for a new trial.
The fourth ground relied on in the plaintiff's petition is untenable. The mere fact — if it be a fact — that the court in charging the jury materially misstated the evidence in an important matter is not a ground for a new trial unless the attention of the court is called to the error at the time, so that if a misstatement has been made the court may have an opportunity to correct it. And it is not contended that the attention of the court was called to this matter, or that an exception was taken to the charge in this particular. The plaintiff's neglect to have the error corrected at the time was a waiver of his right to subsequently make objection thereto. *268 Wheeler v. Schroeder,
The fifth exception is to the refusal of the court to charge the jury "that if the defendant was guilty of negligence in leaving the gate of the platform open, and in consequence the plaintiff was thrown off of the car, she is entitled to recover even if she was thrown off by the ordinary jolting of the car, if she was not guilty of contributory negligence, as already explained." Plaintiff's counsel argues that even if the plaintiff was guilty of negligence, the accident would not have happened but for the negligence of the defendant in leaving the gate of the platform open, citing Prue v. N.Y., P. B. Ry. Co.,
Petition for new trial denied, and case remitted to the Common Pleas Division with direction to enter judgment on the verdict.