Fulsome v. Town of Concord

The opinion of the court was delivered by Pierpoint, Ch. J. It is claimed on the part of the defendant that the county court erred in allowing one of the plaintiff’s witnesses to testify, “ that in his opinion, the highway at the place of the accident was not sufficiently wide to allow two team wagons to pass each other.” If this testimony is to be regarded as the opinion of the witness as to the sufficiency of the highway, in respect to its width for public travel, its admission was clearly erroneous ; but we do not so regard the testimony. It is simply the opinion of the witness as to the width of the highway, given by comparing the width of the highway with the width of a team wagon. It appears that the witness had made some measurements of the width of the highway, with a rod ; how careful and accurate he was does not appear; and the plaintiff seeks to'establish the width of the road, by the opinion of the witness given in the manner stated, and we think there was no error in allowing him to do so. And this is not in any respect a relaxation of the well settled general rule, that the opinion of witnesses who are not professional persons, or experts, is not admissible. There are many exceptions to'this rule, and among the exceptions is testimony as to distances, size, height, value, velocity, &c. ; from the nature of the subject, no other evidence than opinion, oftentimes, can be had. The objection to the charge of the court in respect to the effect of the load of hay upon the accident, was not much relied upon by counsel in the argument, and we think the charge on that subject was all, and perhaps more, than the defendant was entitled to. The defendant requested the court to charge the jury, “ that they should not allow any feeling of sympathy for the plaintiff to influence them in deciding the case.” The court charged the jury that they would remember to lay aside their feelings in the case, but said to them, “ Of course, hone of us can do away entirely with our sympathies; we all have more or less feeling of sym [141] pathy for a party who has been injured, and it is right we should have; but that in making up your verdict in the case, you will lay aside your feelings of sympathy, as far as may be, and determine the issues in the case upon thé evidence given in court, forgetting, as far as may be, the parties and consequences , of your determination.” That the defendant was entitled to have his request complied with, there can be no doubt. Feelings of sympathy for either party, have no place in the jury room, where the rights of the parties aie to be settled, and justice to be done, according to the law and the evidence given in court. Did the court substantially comply with the request ? If the charge, when fairly considered, conveys or countenances the idea that the jury were at liberty to be governed or influenced in any degree in making up their verdict, by feelings of sympathy for either party, then it was erroneous. There is always danger in cases of this kind, that such considerations will operate upon juries, and affect their verdicts ; but courts should see to it, that such a course does not receive judicial sanction or countenance. The court told the jury that they must lay aside their feelings in the case, but said that all would have more or less sympathy for a party injured, and could not help it, but that they must lay aside their feelings in this respect, as far as may be, and determine the issues in the case upon the evidence given in court; this, we think, is, in effect, saying to the jury: You naturally have a feeling of sympathy for an injured party, but you are not to be influenced by this feeling, but to make up your verdict upon the evidence given in court. And while, in this charge, we- do not find substantial error, it would have been more satisfactory to all the members of this court, if the learned judge had been more decided and explicit in instructing the jury that their feeling of sympathy for the plaintiff, should have nothing to do with their verdict. Objection is made to the charge of the court on the subject of damages, but we find no error therein. As under the decisions in this state, the party injured can have but one action to recover the damage, he is allowed in that action to recover not only such damages as have accrued from the injury, but such damages as [142] the jury find will accrue to him in the future from the same cause. And the loss of time, expense, and personal suffering, as the result of the injury, which he recovers for in the past, he will recover for as prospective damages, if the jury find that like damage will accrue to him from the same causes in the future. In respect to the prospective damages, the court reminded the jury that what should be given to the plaintiff in that respect, would be like payments in advance, and that in fixing the sum, that fact might properly be taken into consideration, and the amount reduced to its then present worth. As the effect of this suggestion would be to lessen the damages, if it had any effect, the defendant cannot complain of it, and we find no legal error in it. In respect to the amount of prospective damages to be awarded, the jury are the exclusive judges. Judgment affirmed.