100 Mass. 524 | Mass. | 1868
We do not see that the testimony of Dean, which was admitted notwithstanding the plaintiffs’ objection, was in any respect prejudicial to their case. The most that can be said against it is that it was immaterial; and a verdict is not to be set aside merely on account of the admission of immaterial evidence, unless the court can perceive some possible tendency in it to injure the party objecting to it. Commonwealth v. Bailey, 11 Cush. 415. The plaintiffs’ case required them to prove that the zinc had been injured while in the possession of the defendants as carriers. When the defendants delivered it, it was found to be injured by water, and the silos, or zinc wrapping cases, broken and perforated with nail holes. The witness was asked as to the usual manner in which zinc was imported, and testified that it was in these silos soldered so as to be air and water tight. The tendency of this evidence would be to show that the zinc in question was not, when imported, in the condition in which it was found when delivered; and so far, if it had any bearing, would be favorable to the plaintiffs, as leading to the inference that the injury to the packing cases occurred subsequently to the time of importation. The point at issue and on trial was whether the injury was caused or suffered by the defendants; and no inference in their favor could be drawn from proof that it was usual to pack the article securely when imported.
The instructions given to the jury seem to us to have been correct. The instructions asked should not have been given, because the burden of proof was upon the plaintiffs to show that the goods were damaged while in the possession of the defendants. The receipt, admitting that they were received in good order, accompanied by proof that they were delivered in a damaged condition, sustained the burden of proof, but did not change it. And such was the ruling of the court; that the burden of proof was on the plaintiff, and that the receipt was primd facie, but not conclusive evidence, to sustain this burden. Shepherd v. Naylor, 5 Gray, 591. The ruling seems to us to have been in substance exactly what the plaintiffs contend it should have been. Exceptions overruled.
