Kennedy v. Armstrong

Carroll, J. The plaintiff was injured while in an automobile of the R. & L. Company, which collided with an automobile of the defendant. She brought suit against both the defendant and the R. & L. Company. The cases were tried together and a verdict of $15,505 was recovered against each. On the defendant’s motion to set aside the verdict, the judge * ordered the verdict set aside unless the plaintiff remitted $6,000, to which she agreed. 1. Dr. Davison, a witness for the defendant Armstrong, on [358] cross-examination by the plaintiff was asked: “How frequently do you testify in court?” to which he answered: “I have testified in court twenty times.” This question was then put to him by the plaintiff’s counsel: “Usually for an insurance company or defendant?” This question was not answered, the defendant asking to have the case taken from the jury. The judge refused this request, to which refusal the defendant excepted. If the judge thought this question was asked for the purpose of leading the jury to suppose an insurance company, and not the defendant, was the real defendant, thus turning their minds from the real issue in the case and tending to arouse prejudice against the defendant, the judge had the right in the exercise of a sound judicial discretion to take the case from the jury. There is nothing in the evidence, however, to show that there was any abuse of this discretion in refusing the request of the defendant, and we cannot revise his decision. In fact, the judge in his statement filed with the decision on the motion to set aside the verdict says there was “no intention, or censurable fault of counsel.” The plaintiff clearly was not at fault because- a witness, who was later called by one of the defendants, and while he was under cross-examinatian by the counsel for the other defendant, made an irresponsive answer indicating that Armstrong referred him to the insurance company. Nickerson v. Glines, 220 Mass. 333. 2. A witness for the plaintiff testified that she was in a position to hear the horn of either automobile, if blown. To this the defendant excepted and later the judge ordered the testimony stricken out. Even if this evidence were inadmissible, a question which we are not called upon to decide, (see Slattery v. New York, New Haven, & Hartford Railroad, 203 Mass. 453; Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532,) this exception must be overruled, because the judge ordered the evidence to be stricken from the case. 3. A witness was permitted to read from a paper purporting to be a copy of a statement made by the driver of the R. & L. Company’s automobile. It was offered by the R. & L. Company as evidence against the plaintiff. The cases against the R. & L. Company and this defendant were tried together, and each defendant had the right to present all the material evidence bearing on the issue, even if prejudicial to the other. The judge more than [359] once, while the admissibility of the evidence was under discussion, and again when the witness was testifying, instructed the jury clearly and decisively that the statement was not evidence against Armstrong and must be entirely disregarded as to him. We do not see what more the judge could have done to protect the defendant’s rights. Williams v. Taunton, 125 Mass. 34, 39, 40. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577. Jones v. Boston, 197 Mass. 66. The remaining exceptions are not argued on the defendant’s brief, and we consider them waived. Exceptions overruled. Footnotes [*] King, J.