91 Mass. 181 | Mass. | 1864
We perceive no ground for exceptions to the ruling of the court in the matters relating to the report of the majority of the auditors. The statute of limitations constituted no part of the defence, and their finding that the deterioration of the plaintiff’s land had not increased within six years did not raise any new issue, or affect the case, except as being a part of the facts bearing upon the general question whether the plaintiff’s land had been injured by the defendants by the causes set forth in the declaration.
The court properly ruled that a separate and dissenting report made by one of the auditors was not admissible as evidence under the statute. There can be but one legitimate report on a reference of a case to auditors, and that is the report of the majority, upon a hearing by all the members. The fact will always appear from the report itself that it had not the concurrence of all the auditors, but it is nevertheless the report that is to be prima facie evidence upon the matters committed to them. Gen. Sts. c. 121, § 48.
The second ground of exception is the rejection of the proposed inquiries put to Arnold and Woodward. As to the first branch of these inquiries, in the opinion of a majority of the court, the question proposed is not to be considered as an inquiry as to a physical fact, occurring in the presence and under the immediate observation of the witnesses at the time, but a mere statement of a general result or effect produced by the settling of scum on certain lands between the copper works and the plaintiff’s meadows. The witnesses were not offered as experts, and the admission of their evidence was not asked upon that ground. The localities' to which the questions referred were other lands than those of the plaintiff, and on this account are obnoxious to the objections which arise to the more extended course of inquiry proposed in reference to these witnesses, ana which we shall proceed to consider.
But in the opinion of the court, the plaintiff was not authorized to introduce evidence of similar alleged grievances suffered by owners of other lands. Such inquiries would present as many distinct issues as there were alleged cases, and would involve questions of fact equally difficult and extended with those which would arise in the particular case of the plaintiff The effect would be, if such evidence was admissible, that the defendants must be prepared to go into a full hearing of any alleged injury attributed to this mill caused to all the lands bordering on the river. How would this advance the inquiry in the present case ? If the purpose was, as was stated by the plaintiff, to show that the ingredients in the water from the defendants’ works settling on the land, and the gases from the chimney, injured vegetation and the soil, why not have shown it by proof of its effect upon the plaintiff’s land ? If such effect has been produced here, it establishes the fact, and needs no inference from what has been done in other localities, and avoids not only the unlimited inquiry as to its effect upon other lands, but the farther inquiry as to the similarity of soil and exposure of such lands, and also the effect of their greater proximity to the works. We see no sufficient practical advantage from this unlimited inquiry as to the past and present condition of other meadows while we can see that it might greatly
In the rejection of this testimony, the court seems but to have followed the decision of this court in the recent case of Emerson v. Lowell Gas Light Co. 3 Allen, 410. That was an action of tort for an alleged injury to the plaintiff’s health from the inhalation of gas which escaped from the defendants’ works through the negligence of their servants; and, for the purpose of showing that the inhalation of gas was noxious/ and that its effect was to produce sickness, it was proposed to show in evidence that a large number of houses in the neighborhood, the drains of which were connected with the sewers, were filled with gas, and especially to show that it entered the house adjoining and back of the plaintiff’s house, and that wherever the gas entered sickness followed; but the court rejected the evidence as incompetent. In the opinion delivered in that case, it was said: “ Each separate and individual case must stand upon, and be decided by, the evidence partieulárly applicable to it. ... If such evidence was admissible, the issues in a single cause might be' indefinitely multiplied; and this would tend only to confusion, and to mislead the jury. . . . The plaintiffs could not establish or strengthen the evidence in their own case by any proof' concerning the condition of, or the injuries received by, another person.”
It was upon the same principle that this court, in an action against a town for an injury occasioned by a defect in the highway, affirmed the ruling of the court of common pleas, Holding evidence not admissible on the part of the plaintiff, for the purpose of proving the existence of such defect, that another person before the injury complained of received a similar injury at the same place and from the same alleged defect without any negligence on his part, as it would raise a collateral issue, and result in testing one point in dispute by another. Collins v. Dorchester, 6 Cush. 396.
So also on a question of damages by the location of a railroad
The proposed testimony of Crane as to the state of the meadows on Rumford River, and that they had not deteriorated, was properly rejected for similar reasons. It was also subject to the objection of being evidence as to land situated on another river.
It is objected that this view of the law is in conflict with certain earlier decisions of this court, found in the cases of Bradford v. Boylston Ins. Co. 11 Pick. 165, and Standish v. Washburn, 21 Pick. 237. It becomes necessary to recur to those cases to consider whether the inconsistency supposed is apparent or real, and, if the latter, which is in principle the sounder exposition and the one to be applied to the present case.
In the case of Bradford v. Boylston Ins. Co. the plaintiff claimed to recover damages on a policy of insurance upon certain bales of blankets shipped on board the Aspasia at Liverpool, to be conveyed to New York; and he contended that, owing to tempests on the voyage, the salt water found access to the goods and damaged them, and offered evidence tending to prove these allegations. The defendants contended that the damage arose from some defect in the manufacture of the blankets, or from their having been fraudulently packed in a wet state for the purpose of increasing their weight. The defendants were allowed to offer in evidence the testimony of one Russell, that during the year 1828 he imported certain bales of blankets manufactured by Wood, (the same person who manufactured the plaintiff's blankets,) which proved to be damaged, and in his opinion by being packed in a wet state for the pur= pose of increasing their weight; also the testimony of one Leea
The case of Standish v. Washburn, 21 Pick. 237, has much more of similitude, in the nature of the question raised, than the case we have been considering. It was not, however, the present case. It was not a case where the plaintiff proposed tc sustain his allegations of injury occasioned to his land by proof that others had sustained similar injuries, but the question was whether the defendant might not, in reply to the plaintiff’*
The remaining exception taken by the plaintiff is that as to the ruling of the presiding judge, permitting Professor Chace, who, in reply to Professor Horsford, and as an expert, had testified that in his opinion copper frequently exists in vegetation, to state in support of such opinion that he had made two experiments similar to those made by the plaintiff’s witness, Professor
In the opinion of the court, this evidence was competent, in the case of one called as an expert. Keith v. Lothrop, 10 Cush 457. Collier v. Simpson, 5 C. & P. 73. Dickenson v. Fitchburgh, 13 Gray, 555. In the case of Ingledew v. Northern Railroad, 7 Gray, 91, an apparently different ruling was made; but we do not perceive that the case of Keith v. Lothrop was brought to the attention of the court, the volume containing it not having been then published. It-seems to us to be the better rule to admit such testimony in the case of an expert, at least to the statement of results.
It will be perceived by the bill of exceptions that no restriction was placed upon the plaintiff as to any evidence that might come from experts.
In the opinion of the court, all the exceptions are to be overruled, and judgment is to be entered upon the verdict for the defendants.