Buxton v. Somerset Potters' Works , 121 Mass. 446 ( 1877 )

Ames, J.

The question addressed to the witness Pierce was put on his cross-examination. He had testified in chief to a declaration on the part of the plaintiff. It was certainly competent upon cross-examination to inquire into the circumstances attending that declaration, and the apparent condition of the party from whom it proceeded. It is easy to suppose a state of things existing which might greatly qualify the effect of such evidence. But upon this point it is perhaps enough to say that, as we do not know what answer was given to the question, we cannot see that any injury was done to the defendant by allowing it to be put. Hackett v. King, 8 Allen, 144. Hobart v. Plymouth, 100 Mass. 159. Kershaw v. Wright, 115 Mass. 361.

Neither can we see that any wrong was done to the defendant, by the exclusion of the testimony of an expert as to the impossibility, or improbability, that the plaintiff could have sustained the injury, without carelessness on his own part. Whether he had been wanting in reasonable care was a question for the jury. It was proper for the witness to describe the machinery, and to explain all its facilities and appliances for avoiding or diminishing danger in its use. But it was for the jury, and not for him, to draw conclusions from the circumstances so detailed. Simmons v. New Bedford Steamboat Co. 97 Mass. 361. Nowell v. Wright, 3 Allen, 166. Ashland v. Marlborough, 99 Mass. 47. Tuttle v. Lawrence, 119 Mass. 276.

With regard to the instruction requested, it does not appear that any evidence had been offered that called for such a ruling, and the exception to its refusal by the presiding judge cannot be sustained. Exceptions overruled.