Hauser v. Town of Fairfield

Maltbie, C. J. The plaintiff recovered judgment for the injuries suffered by reason of a defect in a street in the defendant town and the defendant has appealed. The street was under repair and the plaintiff was walking along it at night. The issues before us concern only the question of contributory negligence on the part of the plaintiff. After both parties had rested and while the defendant’s counsel was arguing to the jury, he stated that no evidence had been offered to show that the plaintiff was free from contributory negligence and that there should have been evidence as to the manner in which she was proceeding and any precautions she had taken. Thereupon the court interrupted and upon counsel for the plaintiff stating that the only evidence as to her conduct was that she was walking, recalled her to the witness stand and she was examined by it and by her own counsel. In the course of the discussion as to the propriety of recalling her as a witness, the court stated that while it recognized that such action would place the defendant in an uncomfortable position, the function of the court was to ascertain the truth, and that if the plaintiff should testify that she groped her way, testimony which the court had it in mind she had given but which counsel told it she had not, still it would be for the jury to determine whether or not she was telling the truth. The plaintiff was present in the courtroom during the discussion and able to hear what was said. On being recalled she stated that she had testified that she was walking slowly or taking her time, and went on to say that she had started very slowly because she knew the road was rough, that she *242 took short steps, the ordinary steps she took when she walked, and that she was trying to see where she could walk, as it was dark. After the conclusion of her testimony the trial court stated to the jury that the proceeding was very unusual and cautioned them to remember that the testimony given was merely part of the evidence in the case, and that they should weigh carefully the credibility to be accorded her testimony. Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion. State v. Levy, 103 Conn. 138, 145, 130 Atl. 96; State v. Chapman, 103 Conn. 453, 479, 130 Atl. 899; King v. Spencer, 115 Conn. 201, 203, 161 Atl. 103; State v. Swift, 125 Conn. 399, 405, 6 Atl. (2d) 359. In any ordinary situation if a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided. In such a situation as the one before us, where the weakness of the evidence of a party has been pointed out, as the trial court did in this case in the statement it made, there is danger that the further testimony may be intentionally designed to remedy the defect rather than to put before the trier a truthful statement of fact. This would, however, ordinarily be a matter for the consideration of the jury in weighing the testimony. We cannot hold that in this case the trial court abused its discretion. In view of the plaintiff’s testimony upon being recalled as to the way in which she was walking, the conclusion by the jury that she was in the exercise of due care could not be held to be unreasonable. In *243 deed, in the situation of the plaintiff, short of outright testimony that she was walking carefully, testimony offered by her but excluded, it is difficult to see how she could have been much more specific. The motion to set the verdict aside was properly denied. Wood v. Danbury, 72 Conn. 69, 72, 43 Atl. 554; Meallady v. New London, 116 Conn. 205, 207, 164 Atl. 391. There is no error. In this opinion Hinman, Avery and Jennings, Js., concurred.