Practice, Civil, Conduct of trial: discretionary limitation of evidence; Mistrial. Jury and Jurors.
At the trial of an action against an elevated railway company for personal injuries suffered when the plaintiff fell on steps leading from an elevated station, the plaintiff in direct examination testified that he fell on ice on the fifth, sixth or seventh step from the bottom, "about five feet from the bottom, up," and in redirect examination again testified that he fell on the fifth, sixth, or seventh step from the bottom. He was not cross-examined as to the location of his fall. The only evidence as to the height of the steps was that each was from seven and one quarter to seven and one half inches in height. The judge, subject to exceptions by the plaintiff, limited the plaintiff, in examination of witnesses as to the condition of the steps, to testimony relating to the fifth, sixth, and seventh steps, and charged the jury in substance that unless they found that the plaintiff fell on one of those three steps he could not recover. In response to special questions, the jury found that the plaintiff did not fall on one of those three steps and that there was no ice on those steps, and found for the defendant. Held, that (1) The plaintiff was bound by his testimony as to the location of his fall; (2) The ruling by the judge showed no error. It is not error for a trial judge to refuse to discharge a jury hearing an action against a public service corporation merely because among the venire, but not on that panel, there was one who was an investigator for the defendant and who was an assistant to lawyers trying cases for the defendant.
BY THE COURT.
The plaintiff, both in direct and redirect examination, specified "the fifth, sixth, or seventh steps from the bottom" of stairs in a station of the defendant as those by reason of the slippery condition of which he contended that his injuries resulted. He was bound by this definite statement. There was nothing else in his testimony or in the evidence to shake its force. He was bound by it. Sullivan v. Boston Elevated Railway, 224 Mass. 405. His further testimony that the ice on the stairs was "about five feet from the bottom, up" was not a modification of his clear description of particular steps. It follows that the judge correctly restricted the evidence to the condition of the three steps thus identified.
The judge rightly declined to discharge the empanelled jury on the ground that another person among the veniremen, but not on the jury, was in the employ of the defendant. There is nothing in the state of the record which required the judge to give the plaintiff's requests for rulings touching this matter. They were impertinent to any evidence in the case. Rich v. Silverman, 216 Mass. 195.
Other exceptions taken, not having been argued, are treated as waived.
Exceptions overruled.