Verran v. Baird

150 Mass. 141 | Mass. | 1889

Holmes, J.

We have not the photograph before us, and must assume that it did not show on its face how much of the gorge represented was caused by the flood, and how much of it was there before. There was no offer to prove that fact, or the others which would be necessary to make the gorge a measure of the volume and force of the water which escaped from the dam of the defendant’s intestate. The photograph of a gully’ half-way between the plaintiff’s dam and that of the intestate,, and a mile and a half distant from both, was not necessarily instructive, and unless it was practically instructive it was not competent. The point at which it would become so was to be determined by the presiding judge upon all the circumstances, just as when sales of neighboring land are offered as evidence of value, and in many other instances. We see no reason to doubt that the discretion of the judge was exercised rightly.

Exceptions overruled.