Edwards v. City of Worcester

• Citation: 51 N.E. 447,172 Mass. 104
• Parties: EDWARDS v. CITY OF WORCESTER.
• Decision Date: 20 October 1898
• Court: United States State Supreme Judicial Court of Massachusetts

172 Mass. 104

51 N.E. 447

EDWARDS v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1898

There was evidence tending to show that plaintiff was driving at the rate of 10 or 12 miles an hour, and defendant introduced a city ordinance limiting the rate of driving to 8 miles an hour. In answer to a question of the court as to the ground on which the jury found their verdict the foreman replied, "On the ground that plaintiff was not in the exercise of due care, because of the rate of speed at which he was going." No poll of the jury was taken on this question, and no written question was previously submitted to them.

COUNSEL

Wood & Wood, for plaintiff.

A.P Rugg, City Sol., for defendant.

OPINION

MORTON J.

The plaintiff does not rely upon the exception to the exclusion of the testimony relating to his habits as to temperance and to his reputation for sobriety, which was offered by him as bearing upon the probability of his intoxication. The ruling was right. Carr v. Railway Co., 163 Mass. 360, 40 N.E. 185; McCarty v Leary, 118 Mass. 509; Heland v. City of Lowell, 3 Allen, 407.

The testimony of the alleged expert, which was offered to show whether the road was safe and convenient for travel, was properly excluded. It related to a matter on which the common experience and observation of the jury qualified them to pass when the actual condition of the way had been described to them, and on which they needed no assistance from an expert. Ryerson v. Abington, 102 Mass. 526, 531; Bliss v. Inhabitants of Wilbraham, 8 Allen, 564; Hutchinson v. Inhabitants of Methuen, 1 Allen, 33; Crane v. Town of Northfield, 33 Vt. 124; Graham v. Pennsylvania Co., 139 Pa.St. 149, 162, 21 A. 151. In Lund v. Tyngsborough, 9 Cush. 36, the answers of the witnesses were admitted as describing the actual condition of the road within their personal knowledge, and not as expressions of opinion merely.

There is nothing to show that the court erred in putting to the foreman of the jury the question which it did. The circumstances under which the question was put are not fully disclosed. It is said in the plaintiff's brief that the jury had been out 25 hours, but that does not appear in the exceptions; and, if it did, we do not think that it would render the question improper, or that the foreman necessarily would be unable to state the ground of the verdict. Spoor v. Spooner, 12 Metc. (Mass.) 281; Dorr v. Fenno, 12 Pick. 521, 525.

The...