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COONAN v. BALTIMORE & O.R. CO.

December 27, 1938

COONAN
v.
BALTIMORE & O.R. CO.



The opinion of the court was delivered by: KALODNER

This is a motion for a new trial, following a verdict for defendant, in a suit by plaintiff to recover damages resulting to plaintiff when he was struck by a railroad train operated by defendant.

While the facts are not particularly germane to the decision of the points raised by motion for a new trial, I nevertheless recite them briefly as follows:

 On May 1, 1936, the plaintiff was walking on a roadway between two of the defendant's railroad tracks, the roadway constituting the platform of the defendant's railway station at McKeesport, Pa.

 According to the plaintiff's version, he stepped into a hole negligently permitted to exist on the so-called platform by the defendant; the plaintiff fell in such a position that one leg was across the track; an oncoming train crushed the ankle and an amputation of the left leg was later necessary.

 The plaintiff was his only witness.

 For the defense, five disinterested witnesses testified that the plaintiff slipped or fell while in the act of attempting to board or hop a moving freight train, thereby suffering injuries complained of.

 At the conclusion of the Court's charge, counsel for plaintiff requested that the Court instruct the jury that "it is not the number of witnesses which governs, but the quality and credibility of any particular witness; the testimony of one may govern over any number." The Court declined the request and granted an exception.

 The jury brought in a verdict for the defendant, and the plaintiff's motion for new trial complains of the two rulings above described.

 As to the first:

 Exclusion, separation, sequestration of witnesses, or "putting witnesses under the rule," as the procedure is variously termed, is a matter not of right, but of discretion on the part of the Trial Judge.

 "A separate examination of witnesses at the trial is a matter within the discretion of the Court * * * This discretion is not subject to review except in case of a manifest abuse and prejudice to the party complaining." 4 C.J. 826, Section 2802.

 "Except as to parties whether or not the court in a criminal or civil case will exclude witnesses from the court room during the trial and direct that they shall be examined out of the hearing of each other, or shall be 'put under the rule,' as it is often termed, is ...


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