was too late for the defendant at the trial of the case to assume a disadvantage over the plaintiff when it was informed in the plaintiff's pretrial statement on July 13, 1960 of the circumstances of the accident as claimed by the plaintiff, and that the capstan had been involved and that the cogs had slipped. The defendant did not in its pretrial statement or stipulation or at the pretrial conference indicate any desire or need for such a view, and to require this to be done two years after the occurrence of the incident, without giving the plaintiff an opportunity to appraise this situation, was an imposition of surprise upon the plaintiff which could in all fairness not have been allowed without a continuance. It was accordingly disallowed.
Defendant's second contention is equally without merit, that he should have been allowed to produce impeachment testimony in regards to the non-occurrence of the accident on the theory that the plaintiff had left defendant's employ because he wanted to secure employment with the Merchant Marine. This matter was within the knowledge of the defendant August 3, 1961 when it filed its pretrial statement.
Our Pretrial Procedure Rule 5, II, G, provides as follows:
'Failure to make a full disclosure of evidence during the pretrial conference will result in exclusion of that evidence at that trial. The only exception will be * * * (2) impeaching matters * * *. Insofar as impeaching * * * matter is known at the time of the pre-trial, it must be disclosed to the Court alone, for determination by the Court as to the requirement of disclosure.'
Accordingly, since the defendant knew when it filed its pretrial statement, that this evidence might be in order either as defense or impeachment matter, it was its duty to disclose the names of these witnesses with its other witnesses at or before the pretrial, or alternatively to inform the Court of possible impeachment evidence. While the defendant listed its witnesses at or before pretrial proceedings, nowhere and at no time did it list the names or indicate that there were other witnesses or impeachment evidence. The defendant cannot assert that he did not know until the time of trial what his main defense was, i.e. that the plaintiff was quitting to go to work for the Merchant Marine and not because he was injured, and that, therefore, it could not produce witnesses to sustain its own defense until it was actually brought out in the plaintiff's case by defendant's cross-examination, and that the matter which was originally the defense, then became a matter of impeachment for which special witnesses were needed. Because these witnesses were held back by the defendant as it appeared at the time of trial for advantage purposes, it was properly disallowed. There is no reason why procedural rules should not be respected, and this Court will require compliance therewith as justice requires.
As for the defendant's third contention, that the jury was not given proper instructions regarding the plea of surprise raised by the plaintiff with his witness, Wissenbach, it is amply indicated that the jury was left in no doubt, at the time, of the meaning of the circumstances by which a witness called by the plaintiff had surprised the plaintiff's counsel and that the court permitted his cross-examination. This was done openly before the jury and the jury could not have failed the understand its significance. This Court further gave full and explicit instructions on credibility of witnesses generally and on the right of the jury to believe or disbelieve in whole or in part as to what seemed probable and right.
The fourth contention is equally without merit. Because the Court's summation of the plaintiff's case was longer than that of the defendant's case, defendant's counsel attributed prejudice and unfairness by the Court. The plaintiff's evidence was longer and required more discussion. The defendant's was simply a denial. In any event the jury was instructed to rely upon its own recollection and ignore the comments of the Court if it believed the Court's recital to be in any part erroneous. The defendant received equally impartial treatment with the plaintiff and it has no cause to complain.
Both sides had equal opportunities in this case, and at pretrial, both sides were satisfied on what each would be required to produce or face at the trial of the case, as at pretrial, the Court informed the parties.
'THE COURT: Counsel understand that they will be limited at the trial of the case to the issues raised and the disclosures made in the proceedings to date?
'MR. ENGLE: That is right.
'MR. GEARY: Yes.'
Defendant's motion will be denied.
The defendant also objected to the jury's award in its verdict as being excessive. There was ample evidence for the jury to arrive at the award of $ 22,000.00. It could have taken into consideration the evidence for the years after the plaintiff received his injury and partial incapacity that his earnings were reduced by approximately $ 3500.00. It could have taken into consideration the evidence that the plaintiff was not able to do any heavy manual work on vessels, the only work he knew. It could have taken into consideration the evidence that the plaintiff had lost the full use of his right arm. It could have considered that the plaintiff could undergo an operation which would cost approximately $ 500.00 without any guarantee of a remedy. And it could have considered that the plaintiff at the time of his injury was thirty-seven years of age. These, at least, the jury could have considered and this was substantial evidence for its finding. It is not a question of what I or Counsel, or any other person may have believed what this plaintiff was entitled to as compensatory damages. It is possible that others would have awarded a higher or lower amount, but the discretion in this particular case was vested in the jury, and there is no reason why its decision should be disturbed.