| N.H. | Mar 7, 1911
The case is governed by Thomas v. Harrington,
"The conduct and expressions of the plaintiff indicative of the condition of her mental or bodily health at the time were competent evidence on that subject." Chamberlin v. Ossipee,
Evidence that no accident had happened in the previous years when balloon ascensions were made was offered by the defendant and was excluded. The defendant's position appears to have been this fact had some tendency to show that an accident was not likely to happen. It is not apparent in what way it tended to prove the fact sought to be shown. The proposition that such an accident as this might have followed any ascension cannot be controverted. It is equally plain that the percentage of cases in which an accident would occur would be small. All this was well known to the defendant and must have clearly appeared to the jury from a consideration of the geographical features of the country surrounding the fair-ground. If a question of tendency, capacity, or the like were involved, the evidence might be competent. But there is no such element here. If experience had established certain facts or probabilities as to the course and distance the balloon would travel before a wind of the direction and velocity shown on the day in question, or if it had tended to establish other material facts, the result might have been admitted in evidence, if it appeared to the court to be sufficiently related to the fact in issue to be of value in the determination thereof. There is no suggestion of such an element in the facts offered. The course the balloon would take was dependent upon the direction of the wind. This essential *62
element in a comparative test is not found in the proffered evidence. If this did not render the evidence wholly irrelevant, and therefore inadmissible as matter of law, it at least left it so inconclusive as to be plainly immaterial and therefore inadmissible if found to be "too remote to be useful." Cross v. Wilkins,
Exceptions overruled.
All concurred.