Central Railroad v. Curtis

Bleckley, Chief Justice. 1. Under the orders taken in this case (for the sub [424] stance of which see the official report), the judge who heard the motion for a new trial had power to approve the brief of evidence and allow it to be filed at or before the hearing. He may not have been bound to do so after the lapse of so long a time since the trial, for in such matters a judge may, in the exercise of a sound discretion, construe the terms of an order strictly or liberally, adopting the one construction or the other according as the ends of justice may require in the light of all the attendant circumstances. Independontly of the orders made in this particular case, the time of filing the brief would be governed by the 49th rule of practice in the superior courts (Code, p. 1352), which reads thus: “ On every application for a new trial, a brief of the testimony in the case shall be filed by the party applying for such new trial, under the revision and approval of the court. If pending the motion the presiding judge shall die, or a vacancy otherwise occur, then his successor shall hear and determine the motion from the best evidence at his command.” It will be observed that the rule does not expressly designate or fix any time, but the practice under it has usually been to file the brief with the motion or during the same term of the court, unless further time be granted by special order. The power to regulate the time by such orders according to the discretion of the court has been considered as unlimited. Whether a limit of thirty days after the trial has not been imposed by the act of November 12th, 1889 (Acts 1889, p. 83), as to all cases to which that act applies, need not be discussed, for the present is one of the cases pending when it was passed, and is consequently not within its operation. Very probably, under that statute, as perfect a brief as can be gotten ready within the thirty days must, in each case, be approved and filed before that period has elapsed, leaving the necessary additions to be made by subsequent amend [425] ment. Only in rare instances will diligent counsel need to invoke the aid of the amending power. But the proper construction of the new statute has now no immediate relevancy, and is not meant to be dealt with further than to indicate a query. 2, 3. There was no abuse of discretion in denying the motion for a continuance; nor in declining to reopen the case for a further examination of one of the defendant’s witnesses after the evidence had been closed and the opening argument made by counsel for the plaintiff. It is needless to amplify the head-notes on these topics. 4. The ordinance of Fort Yalley made it unlawful to obstruct any public street of the town for more than five minutes by any engine, car or tram of cars. We can perceive no reason why this ordinance was not valid and obligatory. The violation of it was negligence per se, and the charge of the court on that subject was correct. We agree with the court in thinking the ordinance had something to do with the case, and that the evidence warranted its consideration by the jury. It was not for the railway company or its servants to determine how wide the street on which this disaster occurred ought to be, or how much of it ought to be left open and unobstructed. That was a question for decision by the town council in the enactment of the ordinance. The ordinance, by its terms, applies to the whole street; and the street certainly includes all the space that was in actual, daily use as a passway by the public. Nor would mere passive acquiescence of the municipality in violations of the ordinance furnish any excuse for continuing to violate it, or for the negligence involved in so doing. In the face of such an ordinance, the company cannot justify itself by showing that it left room enough in the street for vehicles to pass, and that it had frequently or habitually occupied the street in the same way without remonstrance from the town [426] authorities and without being prosecuted or otherwise proceeded against for its conduct. Forbearance to enforce a law neither repeals it nor confers a license to break it with impunity. If the public street was unlawfully obstructed, and if that obstruction was the proximate cause of the plaintiff’s injury, why should he not have redress ? The question of negligence on his part, and of his power to shun the injury by the exercise of ordinary care, was fairly submitted for determination by the jury. 5. There are many grounds in the motion for a new trial, but in view of the evidence and of the full charge of the court, a copy of which is in the record, we discover no cause for reversing the judgment. The “ air ” of the movant’s case being out of harmony with the law, it would be a needless consumption of time to follow all the variations, some of them very minute, which ramify through the motion. The verdict was warranted, and should not be set aside. Judgment affirmed.