Evidence, Materiality. Attorney at Law. Practice, Civil, New trial. In an action of tort by a woman for personal injuries, where it appears that the plaintiff was attended by a physician who was called in by a person into whose house she was carried after the accident and that the plaintiff paid him nothing, it is proper to refuse to allow the defendant to ask the plaintiff on her cross-examination whether she had any money to pay this physician, this having no bearing, either under St. 1907, c. 443, prohibiting the solicitation of employment by attorneys at law, or otherwise, upon any of the issues on trial.
Upon a motion for a new trial after a verdict for the plaintiff in an action of tort, where at the trial the testimony of the plaintiff and of one other witness was contradicted by that of twelve witnesses for the defendant, the judge refused to rule as matter of law, "that where witnesses of equal candor, fairness and intelligence testify with equal opportunity of knowledge and memory, and their testimony is in all respects of equal weight and credibility," if there is a conflict as to facts which cannot be reconciled, the number of witnesses constitutes a preponderance and the verdict should be in harmony with the testimony of the greater number of witnesses. Held, that, whether or not the ruling requested might be correct as a theoretical proposition, in the present case it required the assumption of facts which were not shown to exist and therefore was refused properly.
MORTON, J.
The question asked the plaintiff on cross-examination by the defendant, "Did you have any money to pay Dr. Heaton?" was properly excluded. There was and is nothing to show its materiality. The question whether Dr. Heaton was employed by the counsel originally retained by the plaintiff, of which there is not only not the slightest evidence but such evidence as there is goes to show affirmatively that he had nothing to do with the employment of Dr. Heaton, could have had no relevancy either under St. 1907, c. 443, or otherwise, to any of the issues on trial.
The ruling requested on the motion for a new trial was properly refused. Whether or not as a theoretical proposition the ruling requested might be true, as applied to the case before the court it required the assumption of facts which were not shown to exist, and therefore was properly refused.
Exceptions overruled.