Evarts v. Town of Middlebury

53 Vt. 626 | Vt. | 1881

The opinion of the court was delivered by

Barrett, J.

In this case the court does not find occasion or need to review the cases involving questions as to expert testimony, either for the purpose of defining such testimony, or of stating the rules to which it is subjected in application.

To the extent to which the witness testified as an expert, as the court understand and construe the exceptions, objection seems hardly to be made in the argument. Plaintiff’s counsel seems to regard the exceptions as presenting the witness, testifying as an expert, “ whether the horse was too smoothly shod to properly manage a load of lumber on a mountain road.” The court regard the witness to have testified in his character of a blacksmith “ accustomed to shoeing of horses,” only on the question whether the shoes as presented had been prepared for summer or winter use. It is agreed that the shoes were properly exhibited in evidence. It was assumed on the trial and not questioned in this court, that a different corking of shoes is practiced for summer from that for winter use. This was familiar to the witness in his business as a blacksmith. He expressed the opinion that the corks were put on for summer and not for winter use. The bite of the objection is in what follows, “ that they were too dull altogether for winter use.” It is not shown that he was asked his opinion of the fitness of the shoes at the time and place of the accident, or that he expressed any opinion on that subject. We understand that last clause of the testimony to have been uttered by the witness by way of description, as showing the difference between summer and winter shoes. As bearing on the question of want of requisite care on the part of the plaintiff, it was proper to show whether or not he had made any preparation for such use of the horses as he put them to at the time of the accident. There were the shoes, showing for themselves. Whether plaintiff was chargeable with want of care in that respeet, might be affected by what had foregone on his part. The season having passed into winter, and the surface having changed accordingly, it would be natural and sensible to inquire whether the shoes had been changed to accord with the changed surface : and if it should be found that they had not, that fact would be for consideration in connection with the exhibited shoes in passing on the subject of requisite care. If it had appeared that they had been prepared for winter use, the fact of the dullness, or any insufficiency of the corks at the time of the accident, might have a very different consideration as bearing on that subject from what it would be entitled to if they had not been so prepared.

The naked fact of the dullness of the corks would not, under the circumstances, be conclusive on that subject. The circumstances attending such dullness might be necessary in order to have it appear whether that dullness was the result of negligence in that respect, or had come to pass without such negligence. The care required in this class of cases, is such as prudent men are accustomed to exercise under like circumstances. In order to judge on that point, something more than the mere fact of dullness might be important. How did that condition of the shoes happen to exist at that time ? would be foremost to be asked, by most men charged with the duty of determining, whether it was in the exercise of the care which characterizes prudent men. It is not our province to evoke error in the trial by curious criticism or conjectural construction. So it is repeated, that, as this court understand the exceptions, the evidence given by the witness does not fall within the category to which the objection taken and urged is applicable, viz., the enacting by the witness what it is the sole province of the jury to do. Judgment affirmed.