Canney v. Rochester Agricultural & Mechanical Ass'n

Peaslee, J. The case is governed by Thomas v. Harrington, 72 N. H. 45. It is there said concerning the duties of defendants who create extra hazards upon a public highway (p. 46): “They knew the work could not be done, in its reasonable and proper prosecution, without increasing the danger to public travel in the highway at that point. The danger arose directly from the work which they required to be done, and not from the negligent manner of its performance. In such a case, one cannot avoid responsibility for the consequences naturally to be apprehended in the course of the performance of the work, by employing another to do the work as an independent contractor.” The motions were properly denied. “The conduct and expressions of the plaintiff indicative of the condition of her mental or bodily health at the time were competent evidence on that subject.” Chamberlin v. Ossipee, 60 N. H. 212, and cases cited. Evidence that no accident had happened in the previous years when balloon ascensions were made was offered by the defendant and was excluded. The defendant’s position appears to have been that this fact had some tendency to show that an accident was not likely to happen. It is not apparent in what way it tended to prove the fact sought to be shown. The proposition that such an accident as this might have followed any ascension cannot be controverted. It is equally plain that the percentage of cases in which an accident would occur would be small. All this was well known to the defendant and must have clearly appeared to the jury from a consideration of the geographical features of the country surrounding the fair-ground. If a question of tendency, capacity, or the like were involved, the evidence might be competent. But there is no such element here. If experience had established certain facts or probabilities as to the course and distance the balloon would travel before a wind of the direction and velocity shown on the day in question, or if it had tended to establish other material facts, the result might have been admitted in evidence, if it appeared to the court to be sufficiently related to the fact in issue to be of value in the determination thereof. There is no suggestion of such an element in the facts offered. The course the balloon would take was dependent upon the direction of the wind. This essential *62 element in a comparative test is not found in the proffered evidence. If this did not render the evidence wholly irrelevant, and therefore inadmissible as matter of law, it at least left it so inconclusive as to be plainly immaterial and therefore inadmissible if found to be “too remote to be useful.” Cross v. Wilkins, 43 N. H. 332, 334. Upon this issue the presiding justice found in favor of the plaintiff. After it was determined, as matter of fact, that the question “should be excluded,” its inadmissibility in that trial was established as matter of law. Darling v. Westmoreland, 52 N. H. 401. Exceptions overruled. ■ All concurred.