Sanderson v. Nashua , 44 N.H. 492 ( 1860 )

Bellows, J.

It appears from the case that the plaintiff had notice that the jury, or some of them, in the plaintiff’s absence, viewed the place of the accident, with the defendant’s counsel, and others interested in behalf of the city, by whom various things were said and done in the presence of the jurors; and that this objection was expressly waived by the plaintiff before proceeding to trial.

Unless, then, it is made to appear that something was done of which the plaintiff had no notice at the time of such waiver, and which did not fairly come within the scope of the notice he did receive, he can . not now object. From the case as reported, it appears that the plaintiff had notice of a return to the place after the view, by the jurors, or some of- them, when the ground was again viewed, and suggestions made on behalf of the defendant; and although it must be assumed that such examination, in the absence of the plaintiff, was unauthorized and improper, yet the mere fact that the plaintiff did not know all the particulars of such subsequent examination, or of the suggestions made on the part of the defendant, would not, we think, relieve him from the effect of the waiver; unless the matter, not then brought to his knowledge, was something more than the impropriety of calling the jurors’ attention to the objects connected with the injury, in the absence of the other party.

Upon a careful examination of the affidavits we do not perceive that any thing was done beyond the legitimate scope of a view, had the other party been present; nor do we think that the affidavits disclose any material facts not brought to the knowledge of the plaintiff’s counsel before the trial.

It is true that Mr. WilliamSj one of the persons present, stated when the limbs -were removed from a certain tree; and, so far as this could be regarded as testimony, it was irregular; although a party might properly call the attention of the jury to the tree, with a statement that he proposed to prove that certain limbs were removed at a certain time. That this statement went beyond that is quite probable, but still we are not prepared to regard it as so marked or material in its character as not to be embraced in the waiver. See State v. Rand, 33 N. H. 227.

Di\ Graves being called to testify to opinion as to the health of the plaintiff, might be contradicted by showing that he had before expressed a different opinion, and this is not affected by the fact that he said merely that he did not recollect expressing such an opinion. Nute v. Nute, 41 N. H. 60.

Judgment on the verdict.