Bbooks v. Inhabitants of Acton

| Mass. | Feb 26, 1875

Wells, J.

1. The defect complained of was a ridge of ice and snow across the highway, caused by ploughing out the snow from the railroad track. The snow thus thrown up, with the corresponding depression along the rail, produced an irregularity in the path of the travel upon the highway. The testimony as to the depth of the ice and snow in the highway, that is, the height of the ridge, or depth of the groove, varied widely, and was conflicting. The plaintiff offered to prove, by a witness who had measured it, the depth of the snow in the woods in the neighborhood, on the day of the accident. The testimony was excluded. The facts are not such as to show that any reliable or safe inference as to the depth of a solid ridge of trodden snow and ice in the highway, at a railroad crossing, could be drawn from the depth of the light undisturbed snow in the woods, where it is protected from the direct action of the sun and winds, and in a measure from the rains also ; much less that it would aid in determining the height of a ridge formed by artificial means. They do not show, therefore, that it was error for the judge at the trial to exclude this testimony.

We discover nothing in the wide range of testimony introduced by the defendant upon this point, whether material or otherwise, which entitled the plaintiff to meet it by this offer of proof. The introduction of immaterial testimony to meet immaterial testimony upon the other side, is within the discretionary control of the presiding judge.

2. The recommendations of the horse, contained in the letter to the plaintiff from Bond,- of whom the plaintiff bought the horse, were properly excluded. So far as they were offered to prove the qualities of the horse, they were hearsay. So far as they were offered to justify the conduct of the plaintiff as a prudent man in driving such a horse, they are not shown to have been made material by anything in the state of the evidence on that point. We cannot conceive of any prejudice to the plaintiff from the exclusion of the letter.

3. Bond was a witness for the plaintiff. He denied, in cross-examination, that he had refused to tell the defendant’s agents where the horse was. To contradict him, and to show his relations to the case, or the bias of his feelings, and thus affect his credit as a witness, it was competent to prove that one of the selectmen had made inquiries of him, to learn where the horse then was, and that he refused to give the desired information, or answered evasively. The ruling of the judge, to which exception is taken, was that Bond’s answer to such an inquiry might be proved. This, we think, must be taken to have been the whole extent of the ruling, and the exception can extend no farther than the ruling. The objection and the ruling relate to the subject matter of the inquiry put. to the witness, and not to the form, or relevancy of all parts of the statement given in reply to the question. Nash, v. Hunt, 116 Mass. 237" court="Mass." date_filed="1874-11-10" href="https://app.midpage.ai/document/nash-v-hunt-6417849?utm_source=webapp" opinion_id="6417849">116 Mass. 237, 251. But even if they related to the answer as given and repeated by the witness, we cannot see that the whole answer might not tend to contradict or otherwise affect the credibility of the plaintiff’s witness, Bond. If so, it was admissible for that purpose. That it might also tend improperly to throw doubt upon the previous character of the horse, would not render it inadmissible. Ho instructions against its use for that purpose were asked for.

4. Wheeler, one of the witnesses for the defendant, admitted in cross-examination that he had said he “ would spend his last dollar to beat the plaintiff in this case.” This would tend to impeach his credibility as a witness; and the defendant was entitled to his explanation of the reason or motive for the statement, as showing the real state of his mind towards the plaintiff, which prompted the expression.

5. The jury were rightly instructed that “ if the vice of the horse caused the running, or contributed to the running, the plaintiff cannot recover.” By “ the vice of the horse,” they must have understood some trick or habit of this horse other than the natural excitability common to horses. The direct and immediate cause of the injury was collision with an object, not alleged to be a defect, in consequence of the running of the horse while unmanageable by his driver. The defect complained of does not appear to have had any other connection with the accident, than by exciting or frightening the horse, and thus causing him to run, It has been held that an object, even if in itself a defect, but with which no collision takes place, will not make a town liable for an accident resulting from the running of a horse through fright at the sight of the object. Cook v. Charlestown, 98 Mass. 80" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/cook-v-city-of-charlestown-6415155?utm_source=webapp" opinion_id="6415155">98 Mass. 80, and cases cited. Cook v. Montague, 115 Mass. 571" court="Mass." date_filed="1874-09-16" href="https://app.midpage.ai/document/cook-v-inhabitants-of-montague-6417765?utm_source=webapp" opinion_id="6417765">115 Mass. 571. Whether contact with the object would make any difference, when the only direct and immediate effect of collision is to excite or frighten the horse, we need not determine; because the ruling at the trial included the additional element that the running was due, in part at least, to the vice of the horse. Finding that fact, as the jury must have done, if their verdict was rendered upon this ruling of the judge, they could not find that the defect in the way was the cause of the injury to the plaintiff.

That the vice of the horse was unknown to the plaintiff would bear only upon the question of his own due care ; and in that aspect only is the case of Palmer v. Andover, 2 Cush. 600, in point. In that case the injury was the direct result of coming upon the defect in the way; and the only question was, whether it was by any fault of the plaintiff that his carriage thus came upon the defective place. The difficulty in this case is in tracing the injury back to the defect as its cause. That can only be done through the intermediate action of the horse; and the case sup-, poses a horse with a vice or habit of running, and an injury as the result of his running.

6. The answer of the jury to the question propounded by the court appears to us to have embraced the whole issue, and not to be a special finding in any sense that can give it any practical effect. We regard it as without importance or significance, in the disposition of the case. Exceptions overruled.