Lynch v. Moore

Morton, J.

The only exception taken by the defendant relates to the exclusion of the question to the witness Curtis. The witness had testified that he knew the plaintiff’s horse, and had seen it on the stand two or three times a week, but all he knew of its habits was what he saw it do with horses of his own firm, which he generally turned the other way. He was then asked what was the habit of the plaintiff’s horse with reference to other horses standing near. We think the question must be understood to mean what were its habits with reference to other horses standing near, so far as the observation or knowledge of the witness went. So understood, we think the witness should have been allowed to answer. The habit of the plaintiff’s horse toward other horses standing near was one of the facts in controversy ; the plaintiff contending that it could be left standing alone without moving, and the defendant contending that it was apt to step up to other horses standing near and play with them by biting them on the neck.

The fact that the observation or knowledge of the witness of the habits of the plaintiff’s horse in this respect was confined to its conduct towards horses belonging to his own firm, would seem to go rather to the weight than to the competency of his evidence. We cannot say that it would be no evidence of a habit on the part of the plaintiff’s horse. Day v. Doss, ante, 13. It may be fairly inferred, from the statement of the witness that he generally turned his own horses the other way, that his answer would be material, and favorable to the defendant. For these reasons, a majority of the court think the entry must be, Exceptions sustained.