132 Mass. 299 | Mass. | 1882
The only objection to the notice now taken is that it does not specify the time with sufficient precision. We think this objection not well taken. It has been said, indeed, that under some extraordinary circumstances it might be that not only the time but the cause of the injury ought to be stated with unusual definiteness. Larkin v. Boston, 128 Mass. 521, 522. But there is nothing in this case to show that anything depended either upon the precise height or form of the obstruction, or upon the particular hour of the occurrence. The ruling of the presiding judge that the facts in this case did not require a more specific statement of the time was correct.
The other question raised in the case presents some peculiarities, but they relate rather to matters of practice than to any rule of law. The deposition of Henry A. Gray was offered in evidence by the defendant. The bill of exceptions cannot state the objection and the mode in which it was presented with exact accuracy. The language is, “when the reading reached the cross-interrogatories 1st, and 1st in re-cross, the defendant objected to them and to the answers, and before proceeding exhibited question and answer to the 1st cross-interrogatory to the court.” It seems apparent, therefore, that what took place before the court took place when, in reading, the first cross-interrogatory was reached; and the bill of exceptions speaks only of that interrogatory as having been shown to the court. At that crisis, probably, it was that the attorney for the plaintiff interposed, and demanded that the reading of' the deposition should be continued before the jury, and that the paper should not be privately exhibited to the judge. How far the judge has a discretion to require that everything which takes place in the trial of a cause shall be in open court, and to require of counsel to retain their, positions within the bar and submit every question orally and openly to the court, it is not necessary in this case to inquire.
To such a witness, on cross-examination, immateriality of evidence asked for is not a valid objection to its admission. The utmost that can be said in relation to this inquiry is that it is immaterial, although, as suggested by the presiding judge, it might be of very great importance, especially after the testimony of this witness that he was present at or about the time of the injury, and immediately made a measurement of the height and circumference of the obstruction, upon which the plaintiff might not have been able to offer any evidence.
As to the first re-cross-interrogatory, the circumstances under which it was submitted do not appear. It is the duty of the excepting party to make it plain that there was error. This bill of exceptions does not show that, after the interruption when the first cross-interrogatory was reached, any other suggestion in relation to the competency of the first re-cross-interrogatory was made to the presiding judge. Apparently, the attorney
On looking at the bill of exceptions, we find that the presiding judge ruled distinctly that the “ acts of Gray were not competent by way of admission or otherwise upon the issue whether or not the gas-pipe was an obstruction; ” and then proceeded to limit the purposes for which they might be used, of which limitation it is sufficient to say that it was as favorable to the defendant as the law would warrant. How far they might be used to affect the credibility of the deponent, we have, as before stated, no occasion to inquire. Exceptions overruled.