Bremner v. Inhabitants of Newcastle , 83 Me. 415 ( 1891 )

Libbey, J.

This is an action against the defendant town to recover damages alleged to have been received by a¡ defect in a highway in said town. The alleged defect was the position of a plank at the Newcastle end of the bridge across the river between that town and Damariscotta. One issue involved in the case was, whether the plank rendered the way unsafe for travelers.

The plaintiff called one Dexter Sanborn as a witness, who, after describing the position of the plank, was asked by plaintiff’s counsel, against the objection of the defendant, this question : " In passing from the Newcastle side on to that bridge, what effect did it have upon your carriage ? ” The question was admitted and the witness answered: " Go quick enough and it. would yank you some.” He was further asked : "Didn’t you break a spring, there ? ” to which he was permitted to answer under defendant’s objection : "I broke a spring going over that plank.” He was further asked : " What kind of a carriage was it this spring was broken on?” To this, objection was made, but it was admitted and the witness answered : "A hack. I was driving the hack.”

We think this was error. This court has quite recently held that such evidence in this class of cases, is not competent. The practice in this state has been in accordance with this rule. Branch v. Libbey, 78 Maine, 321, and cases cited.

The same rule prevails in Massachusetts. See cases cited in Branch v. Libbey, supra; and in New Hampshire, Hubbard v. Concord, 35 N. H. 52.

We are aware that courts in some other jurisdictions hold this class of evidence competent, but we think our rule is wise, and we must adhere to it.

Fxceptions sustained.

Peters, C. J., Walton, Virgin, Haskell and Whiteiiouse, JJ., concurred.