Ranney v. St. Johnsbury & L. C. Rd.

67 Vt. 594 | Vt. | 1893

MUNSON, J.

It appears from the exceptions that the defendant presented certain requests to charge, and that these requests were not complied with further than will appear from a transcript of the charge, which is referred to. No •copy of the charge having been furnished us, the questions raised upon it cannot be considered.

The physician who attended the deceased was produced as a witness by the plaintiff, and testified on inquiry that he had ■received no compensation for his services from the railroad ■company or anyone else. It is not shown that anything further appeared concerning his employment or the presentation of an account. The testimony was immaterial, and, standing alone, cannot have prejudiced the defendant.

It does not appear that the objection to the inquiries made •of the witness Ward was disposed of otherwise than as a matter of discretion. It was within the discretion of the court to .permit the plaintiff to prove matters pertaining to his case in connection with the cross-examination. The testimony already introduced by the defendant had made this evidence legitimate in rebuttal, and the court could permit its introduction before the defendant had rested. The order of testimony, both as regards the examination of the particular witness and the general course of the trial, is within the discretion of the court. Pingry v. Washburn, 1 Aik. 264; Goss v. Turner, 21 Vt. 437; State, v. Magoon, 50 Vt. 333; State v. Hopkins, 56 Vt. 250.

The question asked the witness Folsom in cross-examination was answered adversely to the examiner. So the evidence which the defendant sought to introduce in re-examination was not in explanation or avoidance of anything obtained by the cross-examination. It was nothing more than an attempt to take up again the line of the direct examination and carry it to a further point. The refusal to permit this was not error.

The defendant excepted to the refusal of the court to receive proof that at four other points in New England the arrangement of tracks, and the method of drawing up trains for the discharge of passengers, were, and had been for years, substantially the same as at the place of the accident. As the case stands, it is not necessary to determine whether the use of the same arrangements and methods in certain specified places may be shown, as tending to establish proper care on the part of the defendant. The plaintiff made no question as to the propriety of the arrangement of the defendant’s tracks, or the construction of its platform, or its practice in the discharge of passengers under ordinary circumstances. His claim was that the conduct of the defendant was not what it should have been on the morning in question, in view of the increased danger resulting from the irregularity in the arrival of trains, and the unusual number of persons upon the platform. It was claimed that under these circumstances the passengers should liawe been discharged elsewhere or notified to-remain in the car until the other train was in, or that the other train should not have been brought in as it was when the platform was thus crowded, or that some one should have been stationed there to protect or warn the passengers standing on the platform. The defendant’s offér, if held to refer to the invariable practice as regards the movement of trains, did not, in terms, include the practice in regard to special precautions when trains are drawn up in the usual manner under circumstances of special danger; and we think the court below may properly have understood it to relate only to the established method of discharging passengers as dependent upon the arrangement of tracks. The discharge of passengers from trains drawn up in the same way may have been practiced at the points- named, on occasions when the space between the tracks was unusually crowded, in connection with the exercise of special precautions to guard against the dangers incident to the method in such circumstances. The proposed evidence did not contain all the elements needed to show a substantial similarity of management under substantially similar circumstances. This was a sufficient ground for excluding it.

It is evident from the defendant’s requests to charge that the question whether the deceased voluntarily incurred the danger from which she suffered, while under the reasonable apprehension of a real or apparent danger, was one of the issues litigated. This being so, the evidence of Cephas Hill was admissible. Whatever would aid in placing before the jury the situation as it presented itself to the deceased was important in determining whether her conduct was negligent in the circumstances. The movement of the incoming train, its effect upon the conduct of others, the noise and confusion which surrounded the deceased, were proper subjects of inquiry. It was held in Galena, etc., R. R. Co. v. Fay, 16 Ill. 558; 63 Am. Dec. 323, that when the prudence of the person injured is in question, the conduct and exclamations ot other persons exposed to the same danger may be shown.

The court erred in passing up the case upon a pro forma disposition of the motion to set aside the verdict on the ground that the damages were excessive. The motion was addressed to the discretion of the county court, and the defendant was entitled to have that court exercise its discretion. Dunn v. Pownal, 65 Vt. 116. The defendant can avail itself of this error under the exception taken. Farrant v. Bates, 60 Vt. 37.

Judgment reversed., and cause remanded for the correction of errors subsequent to the rendition of the verdict.