Bryant v. Stone

AlleN, J. There are two reasons for overruling tbe exceptions taken by tbe plaintiff to the refusal of tbe court to permit tbe witness Sears to answer tbe questions propounded to him: Tbe first is that tbe evidence offered bad no bearing except on tbe issue of negligence, tbe determinative fact on that issue being as to tbe condition of tbe lighter when it was left at tbe dock of tbe Clyde Line on tbe evening of 9 October, and tbe witness knew nothing of the condition then but was proposing to express opinions based on what be saw on tbe morning of 10 October, without explanation as to tbe changes naturally brought about by tbe ebb and flow of tbe tide; and tbe second, that tbe plaintiff bad tbe benefit of tbe evidence in answers to questions not objected to. [297] Tbe purpose of the evidence was to show that the lighter was tied to the dock negligently, and that it would not have dumped its load of lumber if it had been properly tied, and the witness testified without objection: “It appeared to me that it had too much slack in the rope and the tide rising gave a chance for the lighter to swing around and one end caught under the dock.” “If the lighter had been placed alongside of the piling it would be impossible for the lighter to dump its load.” "We have here the fact testified to by the witness that the lighter was improperly tied, in that the rope was too slack, and his opinion that if it had been properly tied along the piling instead of with a slack rope it would not have dumped its load, which is the substance' of the evidence excluded. The evidence of the witness Eegister, which is the subject of exception, is objectionable because it proves nothing and furnishes the opportunity for mere surmise and conjecture, but this is a good reason for not making it a ground for a new trial unless we can see it was prejudicial, and as it appears, to us it made more for the plaintiff than for the defendant. It is true, counsel for the defendant could argue the possibility of the lines being changed during the night because lines had been changed on the dock in the past, but the earnest and skillful counsel for the plaintiff could, and doubtless did, meet this argument by showing the jury that the question was within itself an admission that the condition in which the lines were seen by Sears on the morning of the 10th was negligent, as otherwise there was no necessity for proving the possibility of a change in them the night before, and that all the evidence was that they had not been changed but were found the next morning as they were left the night before, as Sears testified the lines were too slack on the morning of the 10th, and Eegister, an employee of the defendant and his witness, testified that he assisted in tying the lighter on the evening of the 9th, and that the line had to be'left slack on account of the rise and fall of the tide. The instruction which his Honor refused to give was not directed to the first issue but related to the burden of proof based upon the defendant being found to be a common carrier, and is immaterial as the first issue was found in favor of the defendant. The controversy on the first issue as presented in this record was one of fact, dependent upon the contract, and as such was fairly submitted to the jury, as shown in the part of the charge excepted to. The last exception cannot be sustained as the witness Sears testified [298] it was the custom for the owner to place a watchman on the lighter when it was tied to the dock. We find no reversible error. No error.