Carpenter v. Town of Corinth

• Decision Date: 15 January 1886
• Citation: 2 A. 170,58 Vt. 214
• Parties: A. M. CARPENTER v. TOWN OF CORINTH
• Court: Vermont Supreme Court

2 A. 170

58 Vt. 214

A. M. CARPENTER v. TOWN OF CORINTH

Supreme Court of Vermont, Montpelier

January 15, 1886

Action to recover for injuries alleged to have been occasioned by the insufficiency of a highway. Trial by jury, June Term 1884, Orange County, ROWELL, J., presiding. Judgment for the defendant. The exceptions stated: "Doe, one of the selectmen of the defendant town, was produced as a witness on the part of the town, and was asked on the direct examination by counsel for the defendant whether he learned of anybody who pretended to know, that the tracks of the plaintiff, either horse or wagon, went into that gully on that occasion. The question was objected to. The counsel for the defendant said, it was to draw the inference that the claim had not been made at the time he went out of office. The objection was overruled, and the witness allowed to answer."

The answer did not appear in the exceptions.

Affirmed.

Farnham & Chamberlin and John H. Watson, for plaintiff.

Carleton's testimony was admissible. 1 Best, Ev. s. 316; Piggot v. East. Counties R. Co. 3 C. B. 228, 240; Hinds v. Barton, 25 N.Y. 544; Hogan v. Northfield, 56 Vt. 721; 11 Pick. 161. That the witness should have been allowed to state his opinion, see Morse v. Crawford, 17 Vt. 499; Sherman v. Blodgett, 28 Vt. 149; Cheney v. Ryegate, 55 Vt. 499; Westmore v. Sheffield, 56 Vt. 239; Knight v. Smythe, 57 Vt. 529. It was also legal evidence in rebuttal. Hogan v. Northfield, supra; State v. Meader, 54 Vt. 126; Lytle v. Bond's Est. 40 Vt. 618; Gotleib v. Leach, 40 Vt. 278.

J. K. Darling and R. M. Harvey, for defendant.

It does not appear what the witness's answers were; so error cannot be predicated on them. Randolph v. Woodstock, 35 Vt. 291; Harris v. Holmes, 30 Id. 352; Beard v. Murphy, 37 Id. 99. Carleton's testimony was properly excluded. Crane v. Northfield, 33 Vt 124; Oakes v. Weston, 45 Id. 430; Campbell v. Fair Haven, 54 Id. 336; Haynes v. Burlington, 38 Id. 350; Hine v. Pomeroy, 40 Id. 103; Richmond v. Aiken, 25 Id. 324. As to expert testimony, see Fraser v. Tupper, 29 Vt. 409.

OPINION

ROYCE, Ch. J.

This was an action brought to recover for injuries to the plaintiff's person and property occasioned by the insufficiency of a highway. The first exceptions taken were to the permitting certain questions to be put to the witnesses, James W. Doe and John B. Locke. It does not appear what answers were given to the questions. It is incumbent on the plaintiff to show that the answers were prejudicial to him. The court cannot presume that they were; and nothing here shows that they might not have been favorable to the plaintiff. The questions were not evidence, and it was not error to allow them to be put.

The insufficiency complained of in the highway was a gully nearly in the center of it and extending several rods, into which the plaintiff drove in the night-time. It appeared that the bits attached to the harness of one of the horses the plaintiff was driving were broken, and it was an important question what effect the breaking of these bits had in bringing about the accident, and whether they could have been broken by pulling on the reins, or by the horse stepping into the gully. As tending to show how they were broken, the plaintiff offered to prove by one Carleton that bits in a horse's mouth could be broken by pulling on the reins, and particularly if the horse stepped into any hole or depression that would let him down. It was an offer to give the opinion and judgment of the witness in evidence upon a question that it was the exclusive province of the jury to determine, and upon which they were as well qualified to judge as the witness.

Neither was it allowable to show by the same witness that he had had bits broken in a way similar to the way plaintiff claimed his were broken. If testimony of that character is...