Jones v. City of Boston, 197 Mass. 66

197 Mass. 66 | Mass. | 1907

Morton, J.

This is an action for personal injuries, and was tried, pursuant to an order of the court, duly excepted to by the defendant city, with another action for the same injuries against the contractors Collins and Ham. There was a verdict for the plaintiff in each case and exceptions were taken by the defendants in each case. Those taken by Collins and Ham have not been presented, and those taken by the city are the only ones before us. The case against Collins and Ham was before this court and is reported in 177 Mass. 444. Subsequently, at a retrial of the case against Collins and Ham, the court, subject to the city’s objection and exception, oi’dered that case and this to be tried together. A trial was had and a verdict was directed for the defendants in each case. The plaintiff took exceptions which were sustained by this court in a decision reported in 188 Mass. 53.

Again the two cases were ordered to be tried together, and the exceptions now before us are to that order, to the refusal of the court at the trial to direct a verdict for the defendant, and to the admission of certain evidence. Whether the two cases should be tried together or separately was a matter relating to the conduct of the business before the court, and was entirely within the discretion of the presiding justice. Burt v. Wigglesworth, 117 Mass. 302. Springfield v. Sleeper, 115 Mass. 587. Witherlee v. Ocean Ins. Co. 24 Pick. 67. If the order directing them to be tried together is subject to revision here, then we see nothing improper in the exercise of his discretion by the presiding justice. The two cases depended on the same state of facts, and the order to try them together tended to economy of time and money. The rights of the defendant were carefully guarded in respect to such matters as affected Jones and Collins, but did not affect the defendant city. There is nothing in the nature of things to prevent a case against a municipality or corporation from being tried with a case for the same injuries against private individuals.

In the opinion pronounced when the case was here before, it was said, “ the question for trial in the case against the city was whether the defendant city had used reasonable care and diligence to protect the travelling public against the defect in Seaver Street or Columbus Avenue caused by an iron water shut-off twelve inches above the sidewalk, and three or four inches in diameter; and we are of opinion that the jury could find that it had not done so.” We see no reason to modify or change the views thus expressed and they conclude the case as it now stands. The testimony for the plaintiff was substantially the same as at the former trial, and the city’s defence was substantially the same.

The exceptions in regard to matters of evidence have not been pressed, and we, therefore, treat them as waived. We see no error in the manner in which the trial was conducted.

Exceptions overruled.