Carpenter v. Town of Corinth

58 Vt. 214

Opinion

The opinion of the court was delivered by

Royce, Ch. J.

This was an action brought to recover for injuries to the plaintiff’s person and property occasioned by the insufficiency of a highway.- The first exceptions taken were to the permitting certain questions to be put to the witnesses, James W. Doe and John B. Locke. It does not appear what answers were given to the questions. It is incumbent on the plaintiff to show that the answers were prejudicial to him. The court cannot presume that they were; and nothing here shows that they might not have been favorable to the plaintiff. The questions were not evidence, and it was not error to allow them to be put.

The insufficiency complained of in the highway was a gully nearly in the center of it and extending several rods, into which the plaintiff drove in the night-time. It appeared that the bits' attached to the harness of one of the horses the plaintiff was driving were broken, and it was an important question what effect the breaking of these bits had in bringing about the accident, and whether they could have been broken by pulling on the reins, or by the horse stepping into the gully. As tending to show how they were broken, the plaintiff offered to prove by one Carleton that bits in a horse’s mouth could be broken by pulling on the reins, and particularly if the horse stepped into any hole or depression that would let him down. It was an offer to give the opinion and judgment of the witness in evidence upon a question that it was the exclusive province of the jury to determine, and upon which they were as well qualified to judge as the witness.

Neither was it allowable to show by the same witness that he had had bits broken in a way similar to the way plaintiff claimed his were broken. If testimony of that character is to be admitted it should certainly first be shown that the bits were similar in strength and construction.

The.plaintiff then offered to inquire of the same witness, as an expert, how, in his judgment, the bits could have been broken. It will be observed that it does not appear that the court had decided that the witness was qualified to testify as an expert at the time the offer was made. Whether he was so qualified or not was a preliminary question to be determined by the court, and it not being shown that the court had decided that he was so qualified, we cannot say that it was error to exclude his opinion. The fact that a witness for the defendant had testified without objection that in his opinion the bits were not broken in the manner claimed by the plaintiff, would not render the opinions offered admissible. It does not appear whether the opinion given by this witness was upon his direct or cross-examina tion, and all reasonable presumptions are to be made in support of tlie j udgment. If that opinion was given in crossexaminatio'n, it was not allowable for tire plaintiff to introduce the opinions of others in opposition to it.

There was no error, and the judgment is affirmed.