Weeks v. Town of Lyndon

The opinion of the court was delivered by Tart, J. I. The accident happened while the plaintiff was driving faster than a walk upon one of the approaches to the bridge, and after he had crossed the bridge. The approach was composed of trestle work, and the defendant offered evidence to show that the main stringers of the bridge were thirty feet long ; the court refused to admit the evidence, and such refusal is assigned as error. The statute s. 3139, R. L., imposes a penalty upon any person driving a horse “ faster than a walk, on a bridge with string pieces thirty feet long between the supports ” ; and the defendant claims that the plaintiff being engaged in an illegal act at the time of the accident, is not entitled to recover ; that such an act was negligence per se. Without referring to the effect of such fast driving upon a bridge included in the statute, [645] we think the evidence was inadmissible. The offer was to show that the main stringers of the bridge were thirty feet long; not that they were of that length between the supports ; and unless such was the fact, the driving would not have been illegal. The offer did not bring the case within the statute. The place of the accident was not upon the bridge, but on an approach to it. The statute refers to fast driving upon the bridge itself, not on an approach or wharfing to it; and for this reason the evidence was properly excluded. II. The portion of the deposition of Dunklee, objected to, was rightly excluded. It was the opinion of the witness as to the sufficiency of the bridge. The question has been too often decided to need discussion. III. The testimony offered by the defendant to show special cases in which men afflicted with hernia as badly as the plaintiff claimed to be, had been able to do work, ordinarily done by men in the plaintiff’s condition of life, was properly excluded. This was evidence of a collateral fact^ and therefore inadmissible. IV. The plaintiff produced witnesses who testified that a person of the age of the plaintiff afflicted as he was with hernia, could not be cured. The defendant afterwards offered evidence to show special instances in which men as old as the plaintiff, afflicted with hernia like his, had cured themselves. The court rejected the evidence : Was this ertor ? Evidence offered in a cause must be confined to the point in issue. This rule excludes all evidence of collateral facts; and if the facts offered to be proven were such, then it is not contended that the evidence was admissible. But the defendant insists that the offer to show by other men that they had cured themselves was proper, as such evidence illustrated the condition of the plaintiff, and therefore was direct evidence bearing upon it, and cite the cases of Kent v. Lincoln, 32 Vt. 591, and Walker et ux. v. Westfield, 39 Vt. 250. The question in both of these cases was as to the sufficiency of a highway; and evidence was admitted to show the [646] effect upon other wagons than the plaintiff’s when passing over the place in question. The court say that the effect upon any carriage would be proper to be considered by the jury in passing upon the question of the condition of the road. The question was what was the state and condition of the road, and in the latter case as connected with that question, whether there was a hole in the road that a wagon wheel could drop into. Testimony that other wagon wheels went into it, was admitted for the purpose of showing its existence. We hardly think that it will be claimed that the effect upon wagons passing over other places than the one in controversy, would be legitimate; and it would be necessary that the cases should go to that extent to be authority for the admission of the testimony excluded. It was liable to all the objections urged against the admission of evidence of collateral facts; and notwithstanding the specious form of the offer, it would have been necessary to have determined the various questions of, whether the instances of men were as old as the plaintiff, the hernia like his, whether it was hernia at all, and if so whether the parties cured themselves. The result would be that a trial would become too protracted, and too many issues created, for the adverse party to meet. ■ We find no error in excluding the evidence. The medical testimony of the defendant in answer to like testimony of the plaintiff was not excluded ; and we think that upon the question at issue this was all that the defendant was entitled to. V. We cannot say from the exceptions that the testimony of Mrs. Johnson was inadmissible. The witness was being examined as to the time when she first knew, or had heard, that the plaintiff was afflicted with a hernia. This presupposes that she had already testified that she did know, or had heard of it, and her answers as to the time when she -first had knowledge in regard to it, and from whom she obtained it, may have been proper under certain circumstances. For the purpose of showing the existence of the hernia, what his mother told her, was but hearsay and inadmissible. But such testimony is often admitted for the purpose of identifying an occasion or daté. Hill v. North, 34 Vt. 604. It does not appear but that it was admitted for the latter, or other [647] legitimate purpose, and in order to obtain a reversal of the judgment, error must affirmatively be shown. Green v. Donaldson, 16 Vt. 162. YI. The defendant objected to evidence of damages to the plaintiff’s horse, insisting that the notice was insufficient in that respect. The notice was that the horse was “ injured and damaged.” Pratt v. Sherburne, 53 Vt. 370, is decisive of that question. There was no error in admitting the evidence. VII. , The refusal of the court to allow the defendant to show the conversation between Chase and Grout, for the purpose of explaining why the defendant did not call Grout as a witness, we do not think was error. While it may have been legitimate for the defendant to show that it could not call him, or perhaps (when in their power to do so) the reason why it did not, the offer to show what the conversation was was properly rejected. It was hearsay, and rightly excluded. VIII. The exceptions do not show that there was any evidence in the case upon which the defendant was entitled to instructions upon its requests. They relate to the effect of the plaintiff’s illegal driving, and the insufficiency of the road from latent defects. There is no statement of the evidence in the case, or, what it tended to show, and the only reference to the stenographer’s notes is to the offer of the evidence that the stringers were more than thirty feet long ; this fact alone would, not render the driving unlawful. Although the requests may have contained correct statements of law, the court were not bound to answer them, as it does ■ not appear that they were warranted by the evidence; and the court were not bound to give instructions upon abstract points not raised by the testimony. Wetherby v. Foster, 5 Vt. 136 ; Clark v. Boardman, 42 Vt. 667. IX. We think the court committed error in proceeding with the trial after the defendant’s protest. During the recess taken upon the trial, on account of the sickness of one of the jurors, [648] two of the panel were drawn and served in the trial of Randall v. Randall. An important question in both cases was “ Whether the plaintiff could so manipulate hernia as to aggravate it, and deceive the attending physician.” In rendering a verdict, therefore, in the Randall case, Ritchie and Owen, the two jurors who served in both cases, must necessarily have formed and expressed an opinion upon that question, a fact which would have disqualified them at the beginning of the trial in the case at bar. A juror is incompetent who has “ declared his opinion on either side.” Tidd Pr. (9 Eng.) Ed. 853. A majority of the court think the result was a mistrial. Judgment reversed and cause remanded.