McNeil v. Middlesex & Boston Street Railway Co. , 233 Mass. 254 ( 1919 )

Carroll, J.

The plaintiff sues to recover for injury to his horse, milk wagon and contents, caused by a collision with one of the defendant’s cars. The evidence was conflicting. The plaintiff contended that, while driving at the rate of four miles an hour from an intersecting street across the defendant’s tracks, one of its cars moving at a rapid rate of speed and without any signal of its approach ran into his team. The defendant contended that the plaintiff’s horse was going at a-high rate of speed, and that the car had stopped when the plaintiff’s wagon was driven over the fender. The jury found for the defendant.

The case properly was submitted to the jury. The plaintiff’s first request could not have been given. rightly; the questions raised by the' second request were left to the jury. The judge instructed the jury regarding the duties of the plaintiff and of the defendant. No exception was taken to his charge.

He was not required to give the plaintiff’s third request, even if it be assumed to be a correct statement of law. In addition to this, the driver of the team testified that before crossing the track he looked in the direction from which the car was coming and did not see any car; that he first saw the car when it was about six feet from him. With this evidence in the case the request was not appropriate. Howes v. Grush, 131 Mass. 207, 211. Coles v. Boston & Maine Railroad, 223 Mass. 408, 416. Hooper v. Cuneo, 227 Mass. 37, 40, and cases cited.

The fourth request was based on the speed of the car. The judge could not adopt the plaintiff’s language emphasizing the fact that the car was going at á high rate of speed. That fact was disputed; and as the jury were fully instructed on the point there was no error in refusing the request. Altavilla v. Old Colony Street Railway, 222 Mass. 322.

The fifth request relates to the question of damages. The jury were carefully instructed on this question.

There was no reversible error in excluding the question asked the plaintiff’s driver, as to how much the horse had depreciated in value by reason of the accident; or the question asked the plaintiff, — “How much did the new horse cost?” The plaintiff was not harmed thereby: he was permitted to testify how much his property was worth before and after the accident.

In direct examination the driver of the team testified that the car struck the left rear wheel of the plaintiff’s wagon. In rebuttal he was asked if the car struck the front of the wagon. This evidence was excluded, and the plaintiff excepted. There was no error in excluding the evidence offered in rebuttal. It was a part of the plaintiff’s case in chief, and it was within the discretion of the trial judge to exclude it when offered in rebuttal. Jewett v. Boston Elevated Railway, 219 Mass. 528, 532. In addition to this, the plaintiff testified in rebuttal that “He could n’t see a scar on the front wheel and that there was no evidence that it was struck.” See McCafferty v. Lewando’s French Dyeing & Cleansing Co. 194 Mass. 412.

The plaintiff filed interrogatories to be answered by the defendant; and moved that the defendant be ordered to “expunge, amend, and answer” certain interrogatories, and to disclose the names of the defendant’s witnesses and their addresses. It appeared that Interrogatories 4, 5, 10, 11 and 21 were ordered to be further answered “by consent and order,” and that the motion to disclose the names and addresses of witnesses was denied. It is not shown that there was any further order of the court in reference to Interrogatories 17, 19 and 24. The plaintiff appealed from so much of the order as refused the motion seeking to have the defendant further answer Interrogatories 17, 19 and 24, and to disclose the names and addresses of witnesses. If it be assumed in favor of the plaintiff that questions of this sort can be raised by appeal and not alone by exceptions, which in any event is the preferable and well recognized way of presenting such questions, Brooks v. Shaw, 197 Mass. 376, no error is shown. An appeal in an action at law brings before the court only errors

of law apparent on the record. Moran v. Murphy, 230 Mass. 5. There is no error of law apparent on this record. It is not shown that any order was entered directing the defendant or refusing to direct the defendant to answer further the three interrogatories referred to, and the request for the names "and addresses of witnesses was a matter largely within the discretion of the trial court. It is only when “justice sterns to require it” that a party is to disclose the names and addresses of his witnesses. See, in this connection, St. 1913, c. 815, § 3. Looney v. Saltonstall, 212 Mass. 69, 72. Nickerson v. Glines, 220 Mass. 333.

After the case was tried and a verdict was returned, the plaintiff moved to amend the record so as to read, that the court refused to order “expunged, amended, and further answered Interrogatories 17, 19 and 24” the court having denied the motion, from which order denying the motion the plaintiff appealed. He also filed a bill of exceptions. Here again assuming, but without deciding, that the plaintiff can raise the question by appeal, no error of law is shown. Moran v. Murphy, supra.

The exceptions must be overruled. The assistant clerk testified that, if the court had refused to order the interrogatories to be further answered, this order would have appeared on the record. The judge Was not bound to believe the evidence offered by the plaintiff.

Exceptions overruled.

Appeal dismissed.