3 A.2d 313 | Conn. | 1938
The plaintiff, a pedestrian crossing Stratford Avenue in Stratford, was struck and injured by an automobile driven by the named defendant and owned by the other. There were thirty-six assignments of error, only seven of which are pursued on the defendants' brief. This course of action, especially without notice to the plaintiff, placed an undue burden on him in briefing the case for this court.
Since we feel bound to send the case back for a new trial because of an important ruling on evidence, our discussion of the case is confined to that point. The other rulings on evidence were obviously within the discretionary power of the trial court. The assignments of error directed to the charge do not raise questions likely to cause difficulty on a new trial.
The present accident occurred August 12, 1937. The plaintiff had been previously injured in an automobile accident in 1914. During cross-examination of the plaintiff by counsel for the defendants, an attempt was made to elicit from the plaintiff information as to the character and seriousness of the injuries sustained in the first accident for the purpose of showing that they probably affected him at the time of the injury of 1937. Most of these questions were excluded, little information was obtained and further inquiry was discouraged in no uncertain terms. Counsel for the defendants nevertheless pressed his examination and thereupon the court ruled that no further questions could be asked of the plaintiff about the former accident unless counsel for the defendants would claim in good faith "that some of his injuries are the result of *46 a prior accident." Mr. Woodruff: "I cannot make that claim as I don't know about it." The court: "Then we won't spend time on it." An exception to this ruling was taken.
The extent of and limitations on cross-examination were defined by Chief Justice Wheeler in Bishop v. Copp,
These statements are, of course, in very general terms. It remains to apply them to the particular facts of this case. The trial judge described the attempted cross-examination as a "fishing expedition." Such an expedition has no definite objective and the court has considerable control over it. The examination under consideration, on the contrary, had a very definite and proper objective. In order to recover, the plaintiff had the burden of proving, among other things, his damages. Gold v. Ives,
The colloquy quoted shows that the trial judge did not absolutely stop the cross-examination but required as a condition of its continuance that counsel for the defendant should claim in good faith that some of the present injuries were the effect of the prior accident. This was an unreasonable demand. As stated, the defendant was cross-examining on a claim made in chief and was entitled to fully develop the subject. As far as appears from the record, the required claim could not have been honestly made. On direct examination, where the relevancy or materiality of an inquiry does not appear, the trial court may properly require from counsel a statement of the evidence he expects to elicit and of circumstances which will show it to be material and relevant. On cross-examination, if it does not reasonably appear that the evidence sought may be relevant and material, the court may in its discretion require of counsel a sufficient intimation of the purpose to be served; but, as stated by Christiancy, J., in Campau v. Dewey,
We feel constrained to hold that this limitation on the cross-examination was an abuse of discretion.
There is error and a new trial is ordered.
In this opinion the other judges concurred.