Yore v. City of Newton, 194 Mass. 250

194 Mass. 250 | Mass. | 1907

Loring, J.

1. The presiding judge well might have thought

that the evidence excluded would lead to issues which would be likely to distract if not confuse the jury, take the defendant by surprise, or unduly protract the trial. If the evidence had been admitted it necessarily would have involved the admission of evidence, if offered by the defendant, as to how the hay, the barrels and the wood were loaded in the other cases and in each and all of them, as to how good a driver the teamsters in the other cases were and how they drove the several teams on the other occasions. If the presiding judge did think so, it was his duty to exclude the testimony. Shea v. Glendale Elastic Fabrics Co. 162 Mass. 463. The evidence in question in Bemis v. Temple, 162 Mass. 342, was held admissible because it was not open to these objections.

2. We are of opinion that R. L. c. 176, § 35, must be taken to be an act covering the whole subject as to taking views in civil cases, and that a view can be granted only upon motion of one of the parties. After the view had been requested by the jury the defendant’s counsel “ expressed a desire to have it.” This might be treated and must be taken to have been treated by the presiding judge as a motion for a view by the defendant. The statement made by the presiding judge to the jury that he “ had decided to accede to their request ” cannot be taken to be a statement that he did not act upon the statement made by the defendant’s counsél that he desired a view, which, as we have said, is equivalent to and is to be treated as a motion. In our opinion it was not too late for the judge to grant a view at the time when the view was granted in the case at bar. Ordinarily the time for granting a view is before the evidence is put in. But if the subsequent course of the trial shows that a view should be taken, it may be granted then. It has been held in other connections that it was within the power of the judge to reopen the case at the stage when the view was granted in the case at bar. Graef v. Bernard, 162 Mass. 300.

If it is to be taken on this record that the defendant did not advance the money necessary to defray the expenses of the view, on which we express no opinion, that is no reason for giving the plaintiff a new trial. The purpose of that provision of the act is not to protect any rights of the plaintiff but merely to throw the expense of the view,- in the first instance at least, on the party asking for the view.

Exceptions overruled.