Masters v. Town of Warren

Ellsworth, J. There is but a single objection to the proceedings below worthy of consideration, and that is the rejection of Lucy M. Shove’s deposition. This has been the subject of much consideration with us, and although we have concluded, in the circumstances, to let the verdict stand, we do not mean to express an entire approval of the claim made by the plaintiffs counsel with regard to- it. The question, at the time, addressed itself in some measure to the sound discretion of the judge, yet it was a discretion [299] to be exercised according to the rules of law, and therefore his decision may be reviewed in this court; but after all we may ourselves consider the question in all its relations, and to this end may look at the deposition itself, and inquire if it could properly have had any influence upon the jury. It is scarcely possible for us to appreciate all, the circumstances which at the moment pressed upon the mind of the judge when he refused the reading of the deposition. It is certain that the defendants were bound to satisfy the mind of the judge that it was taken in conformity to law and fairly taken, since the deponent lived within twenty miles of the place of trial, and should, if able, have appeared in court. Now it appears that the deponent had been unwell, and mostly confined to her bed, since the preceding August, some three months. The term had already commenced. The plaintiff's attorneys were known to be occupied in court, and could not have attended if notified. The plaintiff himself was feeble and unfit to attend to the business, and did not in fact attend. He got notice on Saturday evening, that the deposition would be taken at two o'clock on Monday afternoon. Vie will not say that the time was in itself insufficient, as the distance to the house of the deponent was not great, but certainly there was not any time to spare. We ask, why was this matter delayed to so late, I may perhaps say, so extremely late a day, if every thing was fairly intended. If it had appeared that the defendants had just come to the knowledge of the testimony or of the inability of the witness to attend the trial in person, they would have done something towards removing the appearance of a design to take an unfair advantage of the plaintiff. This they could have shown if the fact had been so, and we think they should have done it. On the whole, we think the defendants can not justly complain of the ruling of the judge. We are quite satisfied too, that the deposition, if admitted, would not in any degree have aifected the verdict. The next objection is that the judge in his charge narrated a recent incident of a like character with the one on trial, which had happened in his own neighborhood, which narra [300] tion the defendants insist was calculated to make an improper impression upon the minds of the jury. The objection is substantially that the judge stated a fact which had not been sworn to on the trial. But it was not stated as a fact belonging to the case, and was presented only for the" purpose of illustration. This is a common practice in our courts. No intelligent juror can be deceived by such illustrations. And whether the judge, in commenting upon the facts of the case, has made use of too strong language, or has gone too far in using, by way of illustration, historical or personal incidents of a kindred character to those on trial, is not for us to say. He has a right to illustrate his views as he pleases, and a rule requiring that a rigid criticism should be applied to such expressions, would impose upon the judge an unreasonable restraint, and lead to great inconvenience. The question whether the jury may take into consideration, in estimating the damages in such a case as this, the mental sufferings of the plaintiff, naturally incident to the risk and danger, at the time of the injury, (as we understand the motion,) is settled in the affirmative by this court in the case of Segur v. Barkhamsted, 22 Conn., 290. It is again said that the judge improperly omitted to give any exact rule to the jury as to the kind or degree of care which, if exercised, would exculpate the defendants in case of secret defects in their bridges. We think the defendants are mistaken in their view of the charge. The judge laid down the rule that reasonable and ordinary care was necessary, and this is the true rule. We do not advise a new trial. In this opinion the other judges concurred. New trial not advised.