Opinion
Decided August, 1877.
Whether a sluice for the passage of logs through a dam was suitable for that purpose, and in what part of the dam it should have been placed, are questions on which a competent witness may give an opinion.
TRESPASS. Verdict for the plaintiff, and motion of the defendant for a new trial. One question was, whether there was a reasonable passage for logs over or through the plaintiff's dam. The defendant offered in evidence the opinion of a witness that the sluice for the passage of logs through the dam was not suitable for that purpose, and was not in the proper place. The court excluded the evidence, on the ground that the subject is one on which opinion is not admissible; and the defendant excepted.
Fletcher Fletcher and Ladd, for the plaintiff.
Aldrich Parsons and Ray, Drew Jordan, for the defendant.
The competency of the witness was a matter of fact, to be determined by the court at the trial. Jones v. Tucker, 41 N.E. 546; Dole v. Johnson, 50 N.H. 452; Ellingwood v. Bragg, 52 N.H. 488. But the ruling, that, as a matter of law, opinion is not competent evidence on the subject of inquiry in this case, was erroneous. Some or all of the members of the jury may not need the opinion of a witness in relation to the quality of a load of hay which they have seen and thoroughly examined; — but the law does not exclude the opinions of witnesses on that subject. Hardy v. Merrill, 56 N.H. 227, 247; Brown v. Marr, 55 N.H. 448, 449.
If the jury in this case did not take a view of the plaintiff's dam, a description without opinion might convey a very imperfect idea of the fact which the defendant was entitled to prove. If they took a view in February, when the case was tried, it could not be held, as matter of law, that they were all so skilled in the construction of a proper sluice for running logs, at any time, there or elsewhere, that they could not be informed by the opinion of a witness capable of forming a sound judgment on the subject.
Verdict set aside.
BINGHAM and ALLEN, JJ., did not sit.