Wheeler v. Blandin

24 N.H. 168

• Court: Superior Court of New Hampshire
• Decided: December 15, 1851
• Status: Published

Opinion

Gilchrist, O. J.

When this case was before us at a former term, we decided that the witness was incompetent to give his estimate of the quantity of hay, because he had not a sufficiently definite knowledge upon the subject to make his judgment a reliable source of information. Giving him all the latitude which, perhaps, it is necessary in practice to allow a witness in stating his estimate of length, distance, weight, &c., whenever those matters are to be considered by the jury, he yet falls short of possessing even that imperfect knowledge, which, in the absence of more accurate information, sometimes authorizes the jury to consider and weigh the opinion of a witness. It is now said that if the whole of the deposition of Howland be examined, it will be found that he was fitted, from his knowledge, to make a statement competent to be submitted to the jury.

It is to be remarked that the case finds that the part of the deposition now submitted to us, was not read nor offered to be read to the jury. It has been held by this court that they cannot be called upon to decide whether the matter stated in a case agreed, would, if regularly pleaded, be sufficient to abate a writ. Morse v. Calley, 5 N. H. Rep. 222; Libbey v. Hodgdon, 9 N. H. Rep. 394. Upon this principle, which is the only convenient one in practice, the court cannot be called upon to make a decision upon evidence, unless it were offered or proposed to be introduced by a party upon the trial. We cannot be required to decide upon a hypothetical case, or upon a state of facts which the party does not offer to prove. Our duty is only to decide upon matters actually submitted to us, or to admit or exclude evidence which a party proposes to offer. Tried by this test, the deposition now laid before us should be excluded, and we might properly decline to consider it. It is evident that great injustice might be done to a party if a verdict could be set aside because evidence, however competent in itself, was not read to the jury when it was not excluded by the ruling of the court.

But as the plaintiff thinks that the judgment of the court might have been different in the former case, if the whole of the deposition had been considered, we have examined it for the purpose of ending the litigation on this point. And we think the witness did not possess sufficient knowledge of the subject to enable him to express a reliable opinion, or to form a judgment. He says that the stack of hay “ leaned over a little one side. It, was not round nor square, but a little longer one way than the other. It was built up kind of a mow fashion like. It was settled down so that it did not run up to a peak. It was settled down considerable for a stack of hay to settle. I am not niuch acquainted with stacks of hay.” Then follows the part referred to in the former decision: “ I cannot tell how much it would weigh. I can, guess at it, or give an opinion without guessing.”

Now the most liberal construction would not authorize us to say that the witness was able from his knowledge to make an estimate of the weight of the hay. There is no ground for say-, ing that the witness is an expert. He says in terms that he is not, and his knowledge and observation of this particular stack of hay are extremely scanty. The plaintiff’s counsel has presented the case with all the ingenuity it would admit of, and we have considered the deposition, as no objection was made on the other side.

Judgment on the verdict.