Patterson v. Colebrook

Eastman, J. The ruling of the court, in rejecting a portion of the deposition of Owen, was correct. The evidence was so far matter of opinion as to be liable to the general objection that the opinions of the witnesses cannot ordinarily be received in evidence, unless they relate to matters of skill and science. Robertson v. Stark, 15 N. H. Rep. 109; Norman v. Wells, 17 Wend. 137; Hoitt v. Moulton, 1 Foster’s Rep. 586. Instead of asking the witness what “ cause or occasion” he saw for the accident, or what obstruction the hole in the bridge presented to the passage of the carriage, questions, the answer to which would seem necessarily to call for an opinion from the witness; the defendants should have asked him to give a description of the road and the obstructions, if any, that were in it; and the jury would have judged whether there was any “ cause or occasion ” for the accident. A witness, in giving a description, of the subject-matter in dispute, must oftentimes necessarily exercise to some extent his judgment, and his statements cannot be entirely free from opinion. But that is a different matter from drawing conclusions from detailed or admitted facts, [102] and expressing an opinion in regard to them. It would be one thing for a witness to say that there was a ditch in the road about a foot deep, or a log extending to the middle of the road; and quite another to express the opinion that neither of them caused the accident, or that they did. The fact of their existence being shown, with wheel tracks near them or not, the jury and not the witness, would judge whether they were the cause of the injury sustained. The correctness of the decision whereby a portion of Cloud’s deposition was excluded, is more questionable, particularly the first part, where the witness says that he saw nothing to obstruct the course of the carriage till it struck the log. This was rather a compound of opinion and fact combined. The question should have been put so that the witness might have stated the situation and appearance of the road, instead of jumping at the conclusion that he saw nothing to obstruct the course of the carriage. It appears to us that, for the reasons already stated, the ruling of the court in this respect was well enough. Thompson was a competent witness. He let the wagon to Merrill, not to the plaintiff, and if liable to any one for its insufficiency, it was to Merrill. There was no privity of contract between Thompson and Patterson, either express or implied. The liability in such cases should be direct and immediate, in order to exclude the witness. If he is liable to a third person who is liable- to the party, and the judgment could not be used against him, such circuity of interest is no legal ground of exclusion. And such was the fact here. 1 Greenl. Ev. § 394; Clark v. Lucas, Ryan & Moody 32; Winterbottom v. Wright, 10 Meeson & Welsby 109. We discover nothing in the course pursued by the court, in their instructions to the jury, that ought to disturb the verdict. This exception, as well as the one in relation to the competency of Thompson, is abandoned in the argument.by the defendant’s counsel. [103] But there is another exception to the ruling of the court which, we think, must prevail. We refer to the exclusion of the highway surveyor, as a witness for the defendants. By the first section of chapter 57 of the Revised Statutes, it is provided that in ease any special damage shall happen to any person, or to his team or carriage, by reason of the obstructions, insufficiency or want of repairs of any highway or bridge in any town, the person injured shall recover his damage in an action against such town. It is upon this section of the statute that this action is founded. Section second of the same chapter provides that the town shall have a remedy over against any surveyor through whose fault or neglect the damage shall happen. Under these provisions, surveyors of highways are, in ordinary cases, liable over to towns for damages recovered by virtue of the first section. The judgments recovered against the towns are evidence of the amount of damages in actions against the surveyors ; and hence they are incompetent as witnesses, on trials between the party injured and the towns ; and if the towns wish to use them as witnesses, they must cause them to be legally released. Carleton v. Bath, 2 Foster’s Rep. 559. But if it is made to appear to the court that the surveyor is not liable over for the damages sustained, then the interest in the result does not exist, and the witness is competent. A surveyor of highways is bound to see that the whole amount of taxes embraced in his warrant is fairly laid out and expended, if needed, upon the highway in his district; and when thus expended his duty and liability terminate, unless a further amount be placed in his hands for repairs. He has the right to purchase such timber, plank and other materials, as may be necessary for repairing the highways and bridges within his district, at the cost and charge of the town. Rev. Stat. ch. 55, § 14; Palmer v. Carroll, 4 Foster’s Rep. 314. But in no other respects can he, as surveyor, go beyond the power given by his warrant. If the taxes [104] are insufficient to make the necessary repairs and put the road in proper order, the selectmen are required to cause the road or bridge to be put in repair at the expense of the town. Rev. Stat. ch. 55, § 11. After the tax is expended the surveyor has no discretion to proceed further; that duty devolves upon the selectmen. When a warrant is put into the hands of a highway surveyor, the presumption is that he will cause the taxes to be expended in a judicious manner. In this matter he has no guide but his own judgment; and if he exercises that faithfully and diligently, it is sufficient. He acts as the public agent of the town, and so long as he is governed by good faith and integrity, he is entrusted with a discretion to lay out the money as he may think proper. Palmer v. Carroll, 4 Foster’s Rep. 314. And when he has caused the taxes to be worked out according to his best judgment and within the scope of his authority, and has no further money to expend, and has no power to expend more, unless by special authority from the selectmen, it would be unjust, under such circumstances, to hold him liable for damages occasioned by a deficiency in the highway in his district. Such damages would not be occasioned by any fault or neglect of his. Without funds from the town or authority from the selectmen, the only way in which he could repair the road would be with his own money, and that his office does not require him to do. It would not be reasonable to charge him with neglect of his duty because he did not complete the repairs at his own expense. Per Parsons, C. J., in Wood v. Waterville, 5. Mass Rep. 298. The case finds that prior to the time that the injury complained of happened,.the surveyor had worked out all the taxes upon his warrant, and the presumption is that this was done properly and faithfully, and that his duty had been fully performed. No suggestion is made to the contrary. Such being the fact, any defect in the highway cannot legally be charged to his fault or neglect, and if not, [105] then he had no interest in the result of the cause, and should have been admitted as a witness. The only doubt we have had upon the point has arisen from the uncertainty in the case as to the cause of the injury ; whether it was occasioned from the narrowness of the road or the hole in the bridge. If it happened by the want of repairs in the bridge, the surveyor might, it would seem, have repaired that under the provisions of section 14 of the 55th chapter of the Revised Statutes, which we have cited, independent of the taxes in his warrant, and so, perhaps, have been guilty of fault or neglect; but if from the narrowness and want of repairs in the road where the injury was sustained, ten rods from the bridge, which, we infer from the case, was the proximate cause of the injury, and have so treated it, then no liability could attach to the surveyor. He should, therefore, have been permitted to testify in the case, as he had no interest in the result beyond' that of any other citizen of the town. And inhabitants of towns are, by express provision of the statute, competent witnesses in cases affecting their interests. Rev. Stat. ch„. 188, § 12. Should it be made to appear, on another trial, that the cause of the injury was the defect in the bridge, we might,, perhaps, arrive at a different conclusion. Probably, however,, before another trial, the town will take measures to relieve the case from all doubt, byreleasing the witness from whatever claim they may have upon him. But as the case stands, the verdict must be set aside and A new trial granted.