Fowler v. County Commissioners

88 Mass. 92 | Mass. | 1863

Hoar, J.

These cases come before us upon exceptions taken to the ruling of the superior court, accepting the verdicts rendered by a sheriff’s jury, before which the three cases were tried together.

1. The first objection was to the competency of some of the jurors. But as it appears that this was not taken at the trial, and was first suggested after the verdicts were returned to the superior court, it came too late, and must be considered as waived. Walker v. Boston & Maine Railroad, 3 Cush. 20.

2. The next objection is to the form of the verdicts. We think they sufficiently cover the whole matter submitted. In two of the cases the jurors find that the petitioners were entitled to recover no damages; and in the third they assess the damages “ by reason of the laying out of Central Street,” the warrant being to assess damages “ by reason of the locating, laying out and widening” of said street. The phrase “laying out,” whether it might be reasonably understood as embracing the 1 locating and widening ” or not, obviously covers the whole of the subject matter of the petition upon which the jury have found the petitioner entitled to any damages. We do not think it necessary, the jury being sworn to assess the whole damages which are claimed by the petitioners, that their verdict should expressly negative any or all other damages than those which they allow. The sufficient inference is that no other were sustained by the proof..

The remaining exceptions relate to the rulings made by the sheriff, who presided at the trial, upon questions of evidence.

3. The questions to the witness Stevens upon cross-examinatian, which were objected to by the petitioners, do not appear to us so clearly objectionable as to require that the verdict should be set aside. They all relate to opinions expressed by the witness respecting the necessity for the widening and alteration of the street, and to the effect of such alteration and widening upon the adjoining estates. They seem to have been successive and connected questions, designed to elicit the real opinion of the witness upon the precise point in issue, namely, the extent of damage done to the estates of the petitioners. The answers given by the witness are not stated in the bill of exceptions; and it does not appear, therefore, that any testimony was given which was incompetent in its nature, or prejudicial to the petitioners. It is obvious that the answer to either of the questions might have been such as would have a legitimate bearing upon the issue. The mere opinion of the witness upon the general necessity of altering the street, or upon the effect of such alteration upon other estates, would be irrelevant and inadmissible. But the questions asked might be, and the last one seems to show that they were, intended to draw from the witness an admission that he had previously expressed opinions respecting the damage done to the estates of one or more of the petitioners, inconsistent with his testimony in chief.

4. The testimony of Dunckley, that an “ offer ” had been made to him of a certain price for his land, was properly rejected. The value of an “offer” depends upon too many considerations to allow it to be used as a test of the worth of property. The question put to him on cross-examination, whether he conversed with a man who professed to act for the county commissioners, and who pointed out to him the proposed alterations in the street, does not appear to have been material; and it is no ground for exception that merely immaterial questions were permitted on cross-examination. The answer is not given, and the witness may have said that he had no such conversation ; or if he answered in the affirmative, the conversation may have referred to the opinion of the witness as to the effect of such alterations upon his own estate.

5. The witnesses who were allowed to give in evidence their opinion as to the value of the petitioners’ lands, and the effect upon the value produced by the alterations in the street, all testified that they were acquainted with the value of real estate in the neighborhood. Their statements on cross-examination, although such as to affect the weight of their testimony, do not destroy its competency. Each of them had owned land near that of the petitioners, had bought or sold one or more lots, and was shown to have had opportunity to acquire the knowledge which he claimed to possess. If, with bis positive testimony that he had the knowledge which would qualify him to give an opinion, there was nothing to show that he had not, and something to show that he had it, we cannot say that the decision of the sheriff upon his competency was erroneous. See Boston & Worcester Railroad v. Old Colony Fall River Railroad, 3 Allen, 142.

6. The witness Harriman had testified that he was one of the selectmen of Stoneham, and had given other testimony tending to show that he knew the value of land in the town. The sheriff asked whether, as selectman, he had had occasion to lay out town roads, and assess damages for taking land. The question was obviously pertinent and proper, and the only objection to it is that it was put by the sheriff, and not by the parties. But the question whether the witness was competent was a preliminary question, addressed to the decision of the officer presiding. He asked the question for his own information, as a juror might have done. If he had said to one of the parties that he should wish to know the fact, as it would aid or affect his judgment, and desired that he would ask it if he thought proper, it would perhaps have been more regular in form; but the course adopted did no prejudice to the rights of the parties.

Exceptions overruled.