Toulman v. Elliot

Martin, J., delivered the opinion of the court. The plaintiffs claim damages from the defendants, as masters of two vessels, for a collision and injury to their vessel, occasioned by the negligent conduct of the defendants. There was a judgment in favor of one of the defendants, and of non-suit in favor of the other. The plaintiffs appealed. The defendants severed in their pleas; and after the plaintiffs introduced all their evidence, the counsel of one of the defendants moved for a non-suit, which was granted. The other defendant proceeded with his testimony, and it is contended and established, that the collision was occasioned by the fault or neglect of the defendant who had obtained the judgment of non-suit. There are two bills of exception to be examined ; neither of which affect the defendant who had the judgment of non-suit, for they were posterior thereto. The first is taken to the admission of testimony, to show 1.1 ,.. . i i „ i i „ that the collision resulted from the conduct of the latter defendant; but was objected to on the ground, that if this was the case, his conduct was the remote cause of the 1,111 • 1, 11, collision, and should have been specially pleaded. The judge a quo, correctly concluded that the testimony was admissible, because it supported the allegation that there was no negligence or unskillfulness on the part of the defendant who offered it. . The second bill of exceptions is taken to the call of the judge to a bvstander, to be interrogated as a witness, after , ° . i - f . i, ’ the evidence of both parties was closed and the argument had progressed ; the judge being of opinion that he needed light and information on the matter to which he directed his ° . interrogatories. . It is true the Code of Practice, article 484, says : “ after all incidental questions are decided, and both parties produced * * r their evidence, the argument commences, and no witness or proof can be introduced without the consent of all parties.” The object of this is clearly to induce parties to present at once all their evidence, by depriving them of the means of [230] eking it out, by interrupting the argument for the introduction of the same, or other witnesses, or of documents. It is within the discretion of the court to allow or cause a witness to be called and sworn after the evidence of both parties has been closed, and the arguments had progressed, if the court is of opinion, more light and information is needed on the matter in contest. A new trial is within the sound discretion of the court, to which the application is made ; and this court never interferes in such cases, unless there is manifest error. A non-suit, legally obtained, the party cannot be deprived of it in an action of damages against the masters and owners of the ships New-Orleans and Rowena. IQ the case of Richardson vs. Debuys and Longer, 4 Martin, N. S., 127, we held that the judge a quo, correctly overruled the oppposition of the defendant to the admission of a witness offered by the plaintiff, after “ the parties had closed their evidence,” and the arguments had commenced ; being of opinion it is within the discretion of the court to permit a witness to be sworn, even at that period of the trial, A new trial was asked, on the ground of newly discovered evidence, and refused. Such a refusal is in the discretion of the inferior court: and it has been questioned whether this ... s court could inquire into the correctness of the manner in which this discretion was exercised in the case of a continuance over which it has a like control. Trahan’s Heirs vs. Broussard, 4 Martin, 516. This court never interferes in such cases, unless there be man^est error in the exercise of this discretion. In the present case the district judge examined the question of the . , . ,. . , 1 , new trial with great minuteness and detail, and stated his reasons at large. It does not appear to us that he erred. Onthe merits, judgment was correctly given in favor of one of the defendants; and the plaintiffs can avail themselves of a new action against the other, who obtained the non-suit, if they believe they can establish their claim. The . ^ * non-suit was legally and fairly obtained, and the party cannot be legally deprived of it. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.