105 Minn. 1 | Minn. | 1908
Action to recover damages for personal injuries sustained by the plaintiff by the alleged negligence of the defendant in closing the gates
1. The first reason urged for a new trial is that the trial judge erred in denying defendant’s motion, made on the third day of the trial, to continue the case over the term. The motion was based upon the affidavit of defendant’s attorney, stating, in effect, that M. and his wife, residing outside of the state and at Chicago, were material witnesses for the defendant, and that he was informed and believed that if they were present in court each would testify that shortly before the alleged accident they met the plaintiff and one of her witnesses in a winehouse in St. Paul; that they stated to them that they were going out to fall off a street car for the purpose of getting money from the car company; that they tried it once and failed, but that they were going out to put up a job on the company by getting caught in the gates; that later M. and his wife refused to be parties to the job, and stated to the plaintiff that they would give the whole thing away to the company, and that they did so; and, further, that M. came to St. Paul by arrangement with defendant’s attorney, and a subpoena was there served on him December 6, 1907, and his fees, $1.25, were paid to him, and on subsequent days his fees as a witness were tendered to him, which he declined, saying that it was unnecessary to pay him, that he would remain until the trial was through; and, further, that on December 13, while the trial was still pending, affiant discovered that M. had returned to Chicago, and a representative of the defendant was sent at once to Chicago to secure his return, but M. refused so to do.
The granting of a continuance of a cause is a matter resting largely in the discretion of the trial court, and its action will not be interfered with on appeal, except for a manifest abuse of discretion. Dunnell, Pr. § 383. In view of the admission in the defendant’s answer and the remarkable story of. the absent witness, we are of the opinion that the trial court did not abuse its discretion in refusing -to continue the case over the term.
2. The only other assignment of error.urged by defendant is that the court erred in excluding, as privileged, the proposed testimony
Order affirmed.