94 Me. 34 | Me. | 1900
One issue on trial was whether a band, made of refined iron, around the forward axle of a four-wheeled dray was of suitable material to hang the forward end of the body of the dray upon.
A blacksmith of fifty years’ experience was called as a witness for plaintiff, and in substance testified, that refined iron is a cheaper iron than Norway iron, and that the ore in it is not so good; that it is not so strong by nearly half; that some of it is brittle and that some is quite tough.
The following colloquium, in substance, took place in the presence of the jury:
Q. If you were asked to make a strap of iron, such as I have described, for a dray would you consider refined iron suitable material to be used? (Objected to.)
Court: You may get from him all he knows about iron, its tensile strength, perhaps, and the effect of it in certain conditions and places and its wear, and all those things that he knows or can testify to; but in the end whether it is suitable for a particular purpose must be determined by the jury.
Q. Is refined iron, among blacksmiths, commonly used where tensile strength is required ? (Objected to and admitted subject to exception.)
A. No, sir.
Q. What is commonly used? (Objected to and admitted subject to exception.)
A. Norway iron.
Q. For what purpose is refined iron, as distinct from Norway iron, generally used ?
A. It is used for a good many purposes, wheel tires for one thing, and then it is used on vessels for a good many things, hatch combings and chain plates and all such work as that.
A. I should think there was some strain upon chain plates.
The whole trend of this examination is to show that refined iron is not capable of withstanding a heavy strain, and the jury must have so considered it.
The evidence excepted to is, that blacksmiths do not commonly use refined iron in forgings that are to withstand a strain. Whether they do or no is immaterial. They may not use it because of its weakness, or of its cost, or of its non-malleability and hardness and the difficulty in working it, of the infrequency of having it at hand or for other reasons peculiar to them. Forgings are best made from metal that is ductile and tough, and yet a harder, less ductile metal would serve the purpose equally well. Immateriality made the evidence admitted incompetent. Mere immateriality of evidence admitted is not, necessarily, error. Flint v. Rogers, 15 Maine, 67. It may be, if the evidence be mischievous and calculated to mislead the jury. Royal v. Chandler, 81 Maine, 118 ; Woodroffe v. Jones, 83 Maine, 21; Pease v. Burrowes, 86 Maine, 170.
Is the evidence admitted mischievous and calculated to mislead the jury? No exception is taken to the charge, and no request was made for instructions as to the proper application of the evidence excepted to, and we cannot say that it was of so mischievous a character, taken with the context, as to naturally mislead the jury. On the other hand, it impresses us simply as an opinion of the witness as to the comparative strength of the two kinds of iron, refined and Norway. There was much other evidence in the case upon the question, and we feel that the verdict should not be disturbed, because this fragment of evidence, bulled in the mass, literally understood, was inadmissible. Braley v. Powers, 92 Maine, 208.
The evidence is voluminous, and the case was stoutly contested upon other points than the sufficiency of the strap. The defense contended that the injury resulted from'the plaintiff's own conduct and not from the defective iron. The trial seems to have been a fair one, conducted by eminent counsel, and the verdict is cer
Motion and exceptions overruled.
