Keith v. New Haven & Northampton Co.

Devens, J. The instructions to the jury were full, and were excepted to only so far as there was a refusal to take the case from the jury, upon the ground that there was no sufficient evidence of any want of competent and sufficient inspectors, whom the defendant was bound to provide, or of proper superintendents, and proper instruction of them. As the car, by a defect in which the injury of the plaintiff was received, came from another road, the duty of the defendant was, not to furnish a proper instrumentality, but to make proper inspection, and this duty was performed by the employment of sufficient, competent, and suitable inspectors, acting under proper superintendence, rules, and instructions. Mackin v. Boston Albany Railroad, 135 Mass. 201. The jury were permitted to consider the appearance and conduct of the inspector, who was called as a witness, to aid them in determining whether he was a person of suitable qualifications and of sufficient intelligence to be entrusted with so responsible a duty. What this appearance and conduct were, and how they would be likely to impress a jury, are matters that are not reported, and from their nature cannot be. It is impossible for us to say that, in addition to the other evidence, — as that which tended to show that the car was defective, that, although informed of the accident on the same night, the inspector had no recollection of having inspected the train or having seen defective ladders, and that he did not remember having inspected any particular train before it started out, — his appearance and [181] conduct in the presence of the jury might not be legally sufficient to satisfy them that he was an incompetent person. In Commonwealth v. Emmons, 98 Mass. 6, a jury were permitted to find, from the appearance of a young man, without other evidence, that he was not twenty-one years old. The same principle applies where the inquiry, as in the case at bar, relates to intelligence and understanding, as well as to physical capacity. It was held in Tully v. Fitchburg Railroad, 134 Mass. 499, 503, that the fact that the jury, in most cases of a view, acquire a certain amount of information which they may properly treat as evidence, presents no insuperable obstacle to the granting a new trial on the ground that the verdict was against the weight of evidence. A new trial was granted in that case for the reason that the court was unable to see that “ the jury, from the view, could have acquired any knowledge of material facts which were not put in evidence in court, or that the presiding justice could have supposed that they had such knowledge.” The case at bar is the converse of the one cited. It may well have been that the jury did acquire a knowledge of material facts as to the intelligence of the inspector by his examination as a witness. Exceptions overruled.