Edwards v. City of Worcester

51 N.E. 447, 172 Mass. 104

• Court: Massachusetts Supreme Judicial Court
• Decided: October 20, 1898
• Status: Published

Opinion

Morton, J.

The plaintiff does not rely upon the exception to the exclusion of the testimony relating to his habits as to temperance and to his reputation for sobriety, which was offered by him as bearing upon the probability of his intoxication. The ruling was right. Carr v. West End Street Railway, 163 Mass. 360. McCarty v. Leary, 118 Mass. 509. Heland v. Lowell, 3 Allen, 407.

The testimony of the alleged expert, which was offered to show whether the road was safe and convenient for travel, was properly excluded. It related to a matter on which the common experience and observation of the jury qualified them to pass when the actual condition of the way had been described to them, and on which they needed no assistance from an expert. Ryerson v. Abington, 102 Mass. 526, 531. Bliss v. Wilbraham, 8 Allen, 564. Hutchinson v. Methuen, 1 Allen, 33. Crane v. Northfield, 33 Vt. 124. Graham v. Pennsylvania Co. 139 Penn. St. 149, 162.

In Lund v. Tyngsborough, 9 Cush. 36, the answers of the witnesses were admitted as describing the actual condition of the road within their personal knowledge, and not as expressions of opinion merely.

There is nothing to show that the court erred in putting to the foreman of the jury the question which it did.

* The circumstances under which the question was put are not fully disclosed. It is said in the plaintiff’s brief that the jury had been out twenty-five hours, but that does not appear in the exceptions, and if it did we do not think that it would render the question improper. Spoor v. Spooner, 12 Met. 281. Dorr v. Fenno, 12 Pick. 521, 525.

The witnesses were rightly allowed to testify whether the plaintiff was intoxicated. It was not a matter of opinion, any more than questions of distance, size, color, weight, identity, age, and many other similar matters are. Commonwealth v. Sturtivant, 117 Mass. 122. Stacy v. Portland Publishing Co. 68 Maine, 279. People v. Eastwood, 14 N. Y. 562.

Exceptions overruled.

The bill of exceptions recites that, “in answer to a question by the court as to the ground on which the jury found their verdict, the foreman replied on the ground that the plaintiff was not in the exercise of due care, because of the rate of speed at which he was going. No poll of the jury was taken on this question, and no written question was previously submitted to them.”