Pope v. Boston & M. R. R.

• Decision Date: 29 June 1918
• Citation: 104 A. 403
• Parties: POPE et al. v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

104 A. 403

POPE et al.

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

June 29, 1918.

Transferred from Superior Court, Belknap County; Sawyer, Judge.

Action on the case by J. Frank Pope and another against the Boston & Maine Railroad for burning of plaintiff's buildings. Verdict for defendant, and case transferred on plaintiffs' exceptions to evidence and remarks of defendant's counsel. Exceptions overruled.

Sweeney & Cox, of Lawrence, Mass., Stevens, Couch & Stevens and Martin & Howe, all of Concord, and Owen & Veazey and Charles B. Hlbbard, all of Laconia, for plaintiffs. Jewett & Jewett and Theodore S. Jewett, all of Laconia, for defendant.

YOUNG, J. The evidence admitted subject to exception was relevant to the matter in issue; that is, the facts the occupants of the plaintiffs' buildings used liquor to excess, sold it on the premises, concealed it in the hay in the barn, and had been seen to search for it with a lighted match, all tended to the conclusion that they might have set the fire in question. The objection, and the only objection, that can be urged against the admission of these facts, is that they were calculated to excite prejudice. The test to determine whether evidence should be excluded for that reason is to inquire whether the prejudice it excites is undue. The issue raised by that inquiry is one of fact, consequently the plaintiffs' exception to the admission of evidence must be overruled, for it cannot be said there is no evidence to sustain the court's findings that this evidence would probably aid the jury in its search for the truth.

A witness the defendant's counsel was cross-examining testified, without objection, that he had hoard that one of the occupants of the plaintiffs' premises burned another set of buildings; but, when counsel asked him if he had heard she did it by throwing a lamp at the man with whom she was living, the plaintiffs objected, and the court sustained their objection, and directed the jury to pay no attention either to what the witness said he had heard or to the question objected to. The plaintiffs contend that what the defendant's counsel did rendered the trial unfair and that the verdict should be set aside for that reason. Whether the defendant's counsel was guilty of misconduct, and, if he was, whether it produced the verdict, are both questions of fact. If he knew when he asked these questions that they were incompetent, and asked them for the mere purpose of prejudicing the...