Practice, Civil, Conduct of trial, Exceptions. Sale. Where by an order of court an action by a buyer of goods against the seller for the non-delivery of and delay in delivering the goods is tried together with an action by the same plaintiff against the railroad company by which the goods were transported, and the seller testifies as a witness in his own behalf, after he has been cross-examined by the plaintiff, the presiding judge in his discretion, against the objection of the witness, may allow the railroad company to cross-examine him in its own interest; and to such exercise of discretion no exception lies, especially where the testimony elicited is not reported and the excepting party fails to show that he has been injured by the ruling.
In an action by a buyer of goods in transit, which the seller undertook to transfer by the indorsement and delivery of the bills of lading, against the seller for non-delivery of the goods, where the plaintiff contends that the defendant, either undertook to deliver the goods absolutely, or, if he merely agreed to transfer the bills of lading properly and to give the necessary orders to the carrier, he had failed to give such necessary orders, the presiding judge properly may refuse to give instructions to the jury as to the duties of a common carrier of freight in regard to delivery which, however correct they may be as abstract propositions of law, are inapplicable to the case.
BRALEY, J.
The plaintiffs' cause of action, whether against the defendant, or the railroad company, was for a failure to deliver the peaches either according to the contract of sale or of carriage, and the order that the actions should be tried together rather than separately was not only proper but discretionary with the trial court. Springfield v. Sleeper, 115 Mass. 587. Burt v. Wigglesworth, 117 Mass. 302. Commonwealth v. Robinson, 1 Gray, 555. Commonwealth v. Miller, 150 Mass. 69. Commonwealth v. Bingham, 158 Mass. 169. Within the scope of such an order is the probability that if one of the parties in the usual order of proof is called as a witness in either case he may give testimony affecting the issues in the other. It does not appear that counsel for the company claimed an absolute right to examine the defendant as an adverse party, for from the language of the exceptions we assume that the cross-examination was permissive. It is impossible to reproduce upon a printed record however perfect the importance of the effect at a jury trial of the shifting aspects of evidence, and the appearance of witnesses. If the defendant had been called by the company as a witness, and had appeared adverse he could have been cross-examined, and, although called in his own favor, the presiding judge upon finding that the company was affected by his evidence may have deemed it expedient to allow such an examination, but, whatever the reason may have been, the orderly conduct of the trial was within his discretion, and the testimony elicited not being reported the defendant fails to show that he has been injured by the ruling. Beal v. Nichols, 2 Gray, 262. Jennings v. Rooney, 183 Mass. 577, 579. Commonwealth v. Johnson, 188 Mass. 382, 385. Lee v. Tarplin, 183 Mass. 52, 54.
The exceptions to the exclusion of evidence and to the instructions to the jury, not having been argued, require no comment, and there remain the exceptions to the requests for rulings so far as they were not given. But of these only the eighth, ninth, fourteenth, sixteenth, seventeenth and eighteenth are now urged. In dealing with them an embarrassment arises because the bill of exceptions does not purport to contain all the evidence, but it is plain that the principal issue was to ascertain the contract between the parties, the terms of which appear to have depended wholly upon the conflicting testimony of the plaintiffs' buyer, and of the defendant. Upon either view the jury were correctly instructed that if the agreement as alleged by the plaintiffs was proved they would be entitled to recover if there had been a breach by a failure to deliver at Boston, or, if this agreement had not been proved, then, if the contract was, as the defendant contended, only to indorse properly the bills of lading, and give the necessary orders to the carrier that the cars should be sent to Boston consigned to the plaintiffs, the defendant would not be liable in damages unless he negligently failed to take such steps as ordinarily would be necessary to accomplish such change and delivery and by reason of his negligence the peaches were finally miscarried. All of the requests refused relate to the duties of a common carrier of freight, and, if correct as abstract propositions of law, they were inapplicable, as the plaintiffs' right to recover did not rest upon the fact that the carrier delivered to a stranger, but on the ground that the defendant either undertook to deliver absolutely, or that upon making a sale of goods in transit consigned to himself, he failed to give definite orders to enable the carrier to deliver to the plaintiffs. Milk v. Middlesex Railroad, 99 Mass. 167, 169. Wilson v. Lawrence, 139 Mass. 318. Snow v. Terrett, 167 Mass. 457.
Exceptions overruled.