Hallett v. Jordan Marsh Co. , 240 Mass. 110 ( 1921 )

Rugg, C. J.

These exceptions relate solely to a motion for a new trial. The grounds alleged are (1) that the verdict was against the evidence, (2) that the verdict was against the weight of the evidence, (3) that the verdict, being based on a finding of joint negligence, was on the evidence against the law, and (4) that the plaintiffs, owing to lack of opportunity fully to present evidence in rebuttal refuting evidence unfairly introduced by the defendant affecting the credibility of the female plaintiff respecting vital issues in the case, was deprived of a fair trial.

It is the general rule that motions for new trial are addressed to the sound judicial discretion of the court. It is only in exceedingly rare instances that conditions arise where it can be said that there has been an abuse of that discretion. Berggren v. Mutual Life Ins. Co. 231 Mass. 173.

The chief ground of complaint by the plaintiffs relates to a ruling of the judge limiting the plaintiffs to five witnesses in rebuttal upon a point materially affecting the verdict. No exception, however, was taken to that ruling. A question of law which might have been saved at the trial on the merits cannot be raised as matter of right at a motion for a new trial. The judge in denying the motion for a new trial expressed the opinion that the plaintiffs had a full and fair trial. He stated that the plaintiffs tacitly, if not expressly, assented to the limitation of witnesses in rebuttal. If objection then had been made or exception saved, a different situation might have arisen and the conduct pf the trial judge might have been modified.

There is no fact in this record which shows that there was an unfair trial. There is nothing which indicates an abuse of judicial discretion. The case is covered by the decision in Ryan v. Hickey, ante, 46. The principles illustrated by that decision and in the numerous authorities there collected are decisive against the present plaintiffs. They are thoroughly well settled. It would serve no useful purpose to review at greater length the facts here involved. They do not warrant the establishment of any exception to the general rule.

Exceptions overruled.