Blanchard v. Holyoke Street Railway Co. , 186 Mass. 582 ( 1904 )

Knowlton, C. J.

This is an action of tort, to recover damages for personal injuries. Before the trial the plaintiff’s counsel stated to the court that the plaintiff was unable to come into court to testify, unless upon a stretcher or in a reclining position, and moved that the jury might take a view of the plaintiff at her home. The first question arises upon the plaintiff’s exception to an order denying this motion.

Except in suits for the recovery of damages for the taking of land for a public use, the question whether a view should be taken, in any case, is a matter peculiarly within the discretion of the court. R. L. c. 176, § 35; c. 48, § 43. Commonwealth v. Webster, 5 Cush. 295, 298. Commonwealth v. Chance, 174 Mass. 245, 247. A motion that the jury take a view of the plaintiff in his home, in order to judge of the extent of his injuries, is very unusual, if not entirely unprecedented in this Commonwealth. There was no error of law in the denial of this motion, and the discretion of ' the court seems to have been wisely exercised.

The plaintiff presented at the same time, with the same statement, a motion to be allowed to come into court to testify in a reclining position, supported on a stretcher or couch. Both of these motions had been made and denied at a previous sitting of the court, and the case had then been continued. They were renewed and denied again about a week before the trial of the case. The plaintiff did not at any time appear in court, neither was her deposition taken, nor was any attempt made to take it. The statement of the plaintiff’s attorneys that the plaintiff was unable to walk into court and testify standing or sitting in the usual way was denied by the attorneys of the defendant. At the trial of the case evidence was introduced by the plaintiff that she was seriously injured, and unable to sit up or to come into court and testify otherwise than upon a stretcher or in a reclining position. Evidence was introduced by the defendant that there was nothing the matter with her and that she was able to walk into court. Experts called by the plaintiff, and others called by the defendant, described in detail her physical appearance and condition.

There is no doubt that courts may make reasonable rules and orders for the conduct of business, the preservation of order and decorum, and the prevention of unseemly exhibitions. In such matters, much must be left to the discretion of the presiding justice. Whether, if the judge had found that the plaintiff was unable to testify except in a reclining position, and that she could testify in this way, it would have been his duty to permit her to be brought before the jury upon a stretcher rather than to testify by deposition, is a question which we need not decide in this case. It is enough for our decision to say that no evidence was introduced at the hearing, and that the statement made by the plaintiff’s counsel was denied by the defendant’s counsel. So far as the bill of exceptions shows, the judge may have believed that the plaintiff was well able to walk into court and to testify in the usual way. With a dispute between the parties as to whether the plaintiff’s injuries were real or pretended, and with the opportunities for deception as to her "condition that might be afforded by a reclining position upon a stretcher in the court room, the judge well might decide that the testimony should be presented in the usual way. In the absence of any finding of fact by the judge in favor of the plaintiff’s representation, or of anything to show that the plaintiff was unable to walk into court, it is plain that the exception to the denial of this motion is not well founded.

Exceptions overruled.