Menella v. Metropolitan Street Railway Co.

Freedman, P. J. At the trial plaintiff’s complaint was dismissed before he had finished his case. The plaintiff and his parents are Italians, and the principal reason which led to the dismissal was that the plaintiff had failed to have an unobjectionable Italian interpreter in court, through whom his mother, who did not understand English, could be examined. The first man proposed for that purpose appeared [6] to be a friend of the attorney for the plaintiff, and was to be called as a witness. Assuming that he was properly rejected, the plaintiff’s attorney proposed at least two other men, who he claimed were competent, and they were rejected without any examination into their competency, for the sole reason that the defendant refused to consent to either of them, the trial justice placing his ruling in that respect upon the ground that there was no official interpreter attached to the court, and that in the absence of one he could not compel the defendant to accept a person proposed by the plaintiff for that purpose. This was error. At common law the court has not only the right but also the duty to make such appointment where the necessity exists. 17 Am. & Eng. Encyc. of Law (2d ed.), 27-31, and cases there cited. Statutes for the appointment of official interpreters in certain courts exist to enable said courts to proceed promptly with their assistance, but the duty to appoint as occasion requires remains irrespective of statute. A poor litigant as well as a rich one is entitled to his day in court and to a respectful hearing, and in so far as he cannot present his case, except through an interpreter, it is right to be heard in that way. It would be a denial of justice to make such right depend upon the consent of the defendant. The plaintiff, an infant, brought this action to recover damages for personal injuries sustained by being run down by a car of the defendant ; his mother, although not an eye witness to- the accident, was evidently called to show his age and what kind of an infant he was. The defendant seeks to uphold the judgment on the ground that the testimony of two witnesses to the accident, who were produced by the plaintiff, showed that the plaintiff was guilty of contributory negligence. Assuming for a moment that such claim would be tenable if the plaintiff had been an adult, it might, under the circumstances of this case, have become untenable if the plaintiff had been permitted to show that he was at the time a child of such tender years that as against him a different rule should be applied, and • consequently the testimony of his mother, if taken, might have carried the case to the jury upon this point. [7] The defendant, who prevented this testimony, cannot urge that without it there is not a scintilla of evidence in the case as to the age of the plaintiff. Under the circumstances disclosed, and sufficient evidence having been given to carry the case to the jury upon the question of defendant’s negligence, the court below erred in dismissing the complaint, and especially in dismissing it upon the merits, before the plaintiff had presented all his evidence and closed his case. If it was impossible to obtain the services of a competent interpreter, the trial should have been suspended and the case remanded to the calendar. The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. Davis, J., concurs.