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BISCHOFF, J. The issue was whether the plaintiff had warranted •certain results from its performance of work in altering the defendant’s engine, and, if so, whether the failure to obtain those results was traced to the engine, or to the electric plant, which the defendant had himself supplied, or, again, whether the difficulty was due to the manner in which the defendant operated the engine. It appears that the plant did not work properly, and that the defendant substituted another engine and another dynamo, thus abandoning the old operating plant altogether; but, over due objection, -evidence was received for the plaintiff that the new dynamo was larger than the old—the theory of the reception of this evidence being, as stated by the justice:
“If the defect was in the plaintiff’s machine, then all the defendant need do was to get another machine to operate that same dynamo; whereas, he did not use the machine or the dynamo. The plaintiff may use such inference in arguing to the jury.”
In our view, the evidence of these after happenings supported no permissible inference as to the condition of the engine, and the matter deemed to be deduced was but a violent surmise. Had an engine been substituted to run the same dynamo, and the results were bad, the defect might still have been in the dynamo or the engine. If the results were good, the improvement might suggest that the engine altered by the plaintiff had been at fault; but since no comparison whatever had been made, by taking either the dynamo or the engine with a new one, this ruling of the justice gave the plaintiff the benefit of an assumption that a new engine would have worked no better than the old with the same dynamo, and placed the defendant under the burden of disproving a supposed unfavorable result of a test which was never made, and which he was not under any possible duty of making. To say that his rejection of the entire plant was an admission that he knew in some way that the old dynamo would not work with a new engine would require resort to bald conjecture, far removed from a reasonable inference; and because of the error thus committed, which must needs have affected the jury’s determination of a material issue, a new trial should be had.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.
GILDERSLEEVE, P. J., concurs.
Document Info
Judges: Bischoff, MacLean
Filed Date: 3/5/1908
Precedential Status: Precedential
Modified Date: 11/12/2024