Whipple v. Walpole

• Decision Date: 01 July 1839
• Citation: 10 N.H. 130
• Parties: WHIPPLE v. WALPOLE.
• Court: New Hampshire Superior Court

10 N.H. 130

WHIPPLE v. WALPOLE.

New Hampshire Superior Court

JULY TERM, 1839

July 1, 1839

It is competent for a witness to testify as to the actual cost of property at any particular place, to fix its value.

In an action for damages arising from a defect in a bridge, exemplary damages may be given, in case the defendants have been guilty of gross negligence.

CASE, to recover damages for the loss of the plaintiff's horses, arising from a defect in a bridge, which the defendants were bound to repair.

In the course of enquiry as to the amount of damages sustained by the plaintiff, the plaintiff asked of a witness what horses, like those lost by the plaintiff, cost at Charlestown, in this state, near which place the loss occurred, and at which place the horses had been generally kept and employed most of the time, as a stage team, to transport the mail and passengers between Charlestown and Walpole, in this state. To which enquiry the defendants objected; but the objection was overruled, and the question put and answered.

The plaintiff contended, that he was entitled to recover exemplary damages in this case. The court instructed the jury, that for ordinary neglect the plaintiff could not recover exemplary damages; but that such damages might be allowed, in the discretion of the jury, in case they believed there had been gross negligence on the part of the defendants.

The jury having returned a verdict for the plaintiff, the defendants moved for a new trial.

Hubbard & Gilchrist, for the plaintiff.

Vose, for the defendants.

WILCOX, J. It has been held, in this state, that a witness cannot be enquired of directly as to the value of land, horses, cattle, or other property of a similar character—that to receive such testimony would be to receive the opinion of the witnesses, in cases where they have no particular skill above the rest of the community. It is usual, therefore, to ask of witnesses a description of the property, its character and qualities, leaving it to the jury to assess its value. Rochester vs. Chester, 3 N. H. Rep. 349.

We are not inclined at present either to question the soundness of this opinion, or to extend its operation. It certainly would facilitate our enquiries in many cases to ask directly as to the value of property; while in other cases the testimony of witnesses might so conflict as to aid the jury but little in their investigations. Such testimony may indeed be in some degree open to the objection, that it is more or less the opinion of the witness. So it is, and must be in many other cases; as, when a witness testifies as to lapse of time, or as to distance, without any means at the time to measure them.

In the present case the question put was, what horses like those lost, or injured, cost at Charlestown; which has reference to actual sales, and presupposes that the witness has knowledge of the sale of horses at that place. A witness may testify as to the market value of property at any particular time and place—for that is a matter of fact, and not of opinion. We think, therefore, that the testimony was properly received. Had it appeared that the witness had no knowledge of actual sales of horses at that place,...