Parker v. Boston & Hingham Steamboat Co.

109 Mass. 449 | Mass. | 1872

Mobtoíi", J.

The first exception is to the ruling of the court admitting the testimony of a daughter of the plaintiff, to the effect that “the plaintiff is decidedly worse than she was two months after the accident. She is not able to do so much work as before.” The defendants object that this was a mere expression of opinion by the witness and therefore incompetent. There are many cases in which a witness may state the result of his observation, though it involves in some measure his opinion or judgment. Such are questions of the identity, size or distance of persons or things, and many others. Commonwealth v. Dorsey, 103 Mass. 412. We think the case at bar falls within this class of cases. The witness had the means of observing the plaintiff from • time to time, and her testimony was as to facts within her observation and not a mere expression of opinion reached by a process of reasoning and deduction. She stated what she saw, that the plaintiff was not able to do as much work and was not as well as she was two months after the accident. In Ashland v. Marlborough, 99 Mass. 47, upon which the defendants rely, the inquiry was whether the pauper, whose settlement was in dispute, had, several years before the trial, an obscure disease. The testimony of a witness, not a physician, that the pauper did not then appear like a well man, was held to be incompetent. The witness did not testify to any appearances which indicated disease, such as weakness or inability to labor. His testimony was an expression of his opinion and not a statement of facts observed by him. We think the two cases are distinguishable.

The only other exception is to the admission of the testimony of two witnesses that they gave notice to the persons employed in taking freight and baggage into the boat, of the insecure condition of the gangway plank. The negligence charged was that the defendants did not properly secure and tend the gangway plank by which passengers went on board the boat. Testimony that the attention of the agents or servants of the defendants was called to the insecure condition of the plank was competent to. show such negligence. The defendants contend that there was no evidence that the persons notified were their agents. But there was clearly some evidence tending to show this fact. The men who were notified were employed in the appropriate work of such servants, no one else was present to perform such work, one of the witnesses described them as “hands,” and the captain, who was a witness for the defefidants, did not deny that those men were the servants of the defendants. The only reasonable inference is that they were the servants of the defendants, arid the jury were justified in so finding.

¡Exceptions overruled.