Sheren v. City of Lowell , 104 Mass. 24 ( 1870 )

Colt, J.

1. The testimony of Smith, as to the condition of the sidewalk, became material by the testimony of another witness, which fixed the time when he observed it as being shortly before the injury.

2. The defendants’ witness Belden, on cross-examination, stated a new and material fact, not disclosed in the plaintiff’s case; and there can be no doubt of the plaintiff’s right to rebut this new matter by her own denial.

3. As to the rulings of the judge in the matter of the interrogatories to the plaintiff filed by the defendants, the defendants’ answer was simply a denial of the material facts stated in the declaration ; there was no specific ground of defence set up; the defendants would have been successful at the trial, either by the failure of the plaintiff to prove her own case, or by the controlling effect of the evidence of the defendants. The plaintiff was only excused from answering those questions which, we think, either sought a disclosure of facts material to the support of the plaintiff’s case, or a disclosure of the manner in which she proposed to prove her own case. Wilson v. Webber, 2 Gray 561. Gen. Sts. c. 129, §§ 46, 53.

At all events, the case does not find that the defendants were in' any way injured by the plaintiff’s not answering further. The knowledge derived from the answers sought would enable the defendants better to prepare in advance to meet the plaintiff’s case ; and this was perhaps the only benefit to be derived from them. It is not to be presumed that any statement would be made in them different from what was stated at the trial on the stand. - The plaintiff was herself a witness ; the defendants had full opportunity to examine her, and to draw out every fact which the interrogatories sought for. It does not appear that they were surprised by her testimony, or needed .Ime to meet any new. and unexpected aspect of the case. No sufficient reason is shown for disturbing the verdict in this respect, as it does not appear that the excepting party has been at all prejudiced by the ruling objected to. Bates v. Barber, 4 Cush. 107.

Exceptions overruled.