Bemis v. Temple

• Decision Date: 27 November 1894
• Citation: 162 Mass. 342,38 N.E. 970
• Parties: BEMIS. v. TEMPLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 342

38 N.E. 970

BEMIS. v. TEMPLE.

Supreme Judicial Court of Massachusetts, Worcester.

November 27, 1894

This was an action of tort against the defendant for maintaining a banner suspended across a street, whereby it was claimed that the plaintiff, while traveling upon said street, in the exercise of due care, and driving a safe and gentle horse, was injured by reason of his horse being frightened at said flag and running away.

COUNSEL

John A. Thayer and Arthur P. Rugg, for plaintiffs.

U.S.B Hopkins and Frank B. Smith, for defendant.

OPINION

KNOWLTON J.

To maintain his case the plaintiff was obliged to show that the flag hung across the street was an object which was so likely to frighten horses as to render driving upon the street unsafe, and that in its position there it was a public nuisance. The fundamental question in the case was whether ordinarily safe and gentle horses would be frightened at it. The inquiry was in regard to the effect of an inanimate object upon an animal acting from instinct. The only way in which knowledge on this subject could ever be acquired is by observation of the effect of the object or of similar objects upon the animal. Inasmuch as no two flags hung in different places with different surroundings could ever present precisely the same appearance in different aspects to an unreasoning animal, the most satisfactory way of ascertaining the fact would be by observing the effect of this particular flag upon different horses. In all the observations and experiments, one factor in the problem--the swinging flag--would always be the same. The other factor--the horse--would always truly exhibit his real feelings, and the only possible difference in the results of different observations would arise from the difference in the horses. The question of fact whether a particular horse comes within the class of ordinarily safe and gentle horses is not difficult or complicated, and witnesses could easily give the results of their observations on the conduct of horses which they considered ordinarily safe and gentle. We are of the opinion that the best way to decide the main question in dispute is to show whether ordinary horses have manifested fear of the flag as it hung over the street. The question is not whether the results of experiments with other ordinary horses might be introduced upon the question whether the flag frightened the plaintiff's horse,--although there is much authority for holding that where the elements entering into the experiments are so nearly the same, the results may be shown to establish a fact of this kind,--but the question is, how is a certain kind of animal commonly affected by the sight of a particular object? To ascertain the truth the jury must either use such knowledge as they happen to have on the subject. without the aid of testimony, or experts must be called to give their opinions, if the subject is one in regard to which experts can be found, or witnesses must be permitted to state particular facts which they have observed, each one of which is an illustration and example of the general fact in dispute. The only objection to testimony of the latter kind in such a case is that in testing it collateral issues may be raised. Such an objection in many cases is a sufficient reason for excluding the testimony. Whenever a line of inquiry will give rise to collateral issues of such number or difficulty that they will be likely to confuse and distract the jury, and unreasonably protract the trial, it should not be permitted. But the mere fact that a collateral issue may be raised is not of itself enough to justify the exclusion of evidence which bears upon the issue on trial. Most circumstantial evidence introduces collateral issues, and ordinarily it is a practical question, depending upon its relation to the other facts and circumstances in the case, whether it should be received. It may be remote from the real issue, or closely connected with it; and in many cases its competency depends upon the decision of questions of fact, affecting the practical administration of justice in the particular case, such that a court of law will refuse to revise the ruling of the presiding judge, but will treat his ruling as a matter of discretion.

In the present case the only collateral inquiry which could arise is whether a horse called by a witness "an ordinarily safe and gentle horse" comes within that class. Such an inquiry is certainly simple. We think there would be no practical difficulty in receiving and weighing testimony in regard to the conduct of horses which seem to be like ordinary horses in common use. This precise question has been decided in favor of the plaintiff's contention by many courts of the highest respectability, and we have been referred to no decisions to the contrary. In Brown v. Railway Co., 22 Q.B.Div. 391-393, which was an action for an injury caused by the shying of the plaintiff's horse at a heap of dirt, the court of queen's bench held that the plaintiff was rightly permitted to show that various other horses had previously shied at the same place, and all the judges of the court of appeals "were clearly of opinion that the evidence was admissible and confirmed the decision of the queen's bench division." Crocker v. McGregor, 76 Me. 282, is to the same effect. House v. Metcalf, 27 Conn. 631, was a suit for maintaining a wheel which frightened the plaintiff's horse. The court says the plaintiff "had a right, not only to show the facts regarding its size, form, location, exposure to view, and mode of operation, from which the jury might infer what effects it would naturally, necessarily, or probably produce, but also to prove what effects it had produced in fact. *** The inquiry in every such case is not whether the evidence offered is sufficient to prove the fact claimed, but whether it tends to prove...