Gambar halaman
PDF
ePub

of danger necessitating flight;20 whether the roof over an entry of a coal mine was properly secured at the time of the fall thereof;21 whether the manner in which lumber was piled was dangerous to passers-by;22 whether the means adopted to put out an accidental fire were those that would have been adopted by an ordinarily prudent man;23 whether it was dangerous to thresh grain with steam when a high wind was blowing toward the stacks, whether a highway at a particular point was dangerous or whether an obstruction therein alleged to have caused the injuries sued for was a dangerous obstruction;25 whether the driver of a wagon could have stopped in time to avoid running over a child after seeing him in a position of danger;26 whether a vehicle in which a person injured was riding with her husband when the accident occurred on account of an alleged defective highway was unsafe for the use of two persons riding together in it on ordinary country roads.27

§ 7749. Grounds for Admission of Expert Opinion Evidence. -Where a particular matter involved in the trial of a case and necessary for the jury to understand to reach a conclusion, partakes of the nature of an art, science, or trade, knowledge of which can be acquired only by previous experience or study, and which does not lie within the range of knowledge of men of ordinary understanding, the law necessarily recognizes an exception to the rule against opinion evidence, and sanctions a resort to the opinions of witnesses shown to be learned and skillful or experienced in such particular art, science, or trade, on the particular subject of the inquiry.28 In matters more within the common observation of experienced men, witnesses may, in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinions from such facts, where the opinions involve conclusions material to the matter in hand, provided the witnesses, so far as may be possible, state the primary facts which support their opinions.29

20 Schwander v. Birge, 46 Hun (N. Y.) 66; s. c. 10 N. Y. St. Rep. 802.

21 Colorado Coal &c. Co. v. Lamb, 6 Colo. App. 255; s. c. 40 Pac. Rep. 251.

22 Sonnefield v. Mayton (Tex.), 39 S. W. Rep. 166; s. c. 1 Am. Neg. Rep. 711 (no off. rep.).

23 McNally v. Colwell, 91 Mich. 527; s. c. 52 N. W. Rep. 70; Cowley v. Colwell, 91 Mich. 537; s. c. 52 N. W. Rep. 73.

24 Morris v. Farmers' Mut. Fire Ins. Co., 63 Minn. 420; s. c. 65 N. W. Rep. 655; 25 Ins. L. J. 230.

25 Langworthy v. Green Twp., 88 Mich. 207; s. c. 50 N. W. Rep. 130.

Brink's Chicago City Exp. Co. v. Kinnare, 168 Ill. 643; s. c. 48 N. E. Rep. 446; aff'g s. c. 67 Ill. App. 498.

Robinson v. Waupaca, 77 Wis. 544; s. c. 46 N. W. Rep. 809.

28 Baltimore R. Co. v. Schultz, 43 Ohio St. 270; s. c. 54 Am. Rep. 805; Carthage Turnpike Co. v. Andrews, 102 Ind. 138; s. c. 1 N. E. Rep. 364,

29 Taylor v. Monroe, 43 Conn. 36; Atchison &c. R. Co. v. Henry, 57 Kan. 154; s. c. 45 Pac. Rep. 576; Baltimore R. Co. v. Schultz, 43 Ohio

§7750. Opinions Admissible where Facts Incapable of Presentation by One Other than Observer.-"The general rule is, that the opinions of witnesses, except upon questions of art, science and skill, are not admissible. But the rule has its exceptions. Where the facts are of such a character as to be incapable of being presented with their proper force to any one but the observer himself, so as to enable the triers to draw a correct or intelligent conclusion from them. without the aid of the judgment or opinion of the witness who had the benefit of personal observation, he is allowed, to a certain extent, to add his conclusions, judgment or opinion."30 Thus, where the question is whether the injury was caused by the fright of the traveller's horse, the witness was allowed to testify that the horse did not appear frightened, but sulky.31 So, it was held that a witness might state, "There is a bad place at the side of the road, where they put in the culvert. There had been a culvert put across. The condition of it was bad. At the mouth of the culvert, it was right down." This, the court held, was not an expression of an opinion merely, but a description of the actual condition of the road. So, the courts of some States, in view of the fact that the elements which enter into the question whether a highway is reasonably safe are numerous and often difficult to be described, have long been in the practice of ad

St. 270; s. c. 54 Am. Rep. 805. Unskilled witnesses familiar with a bridge and an overflow may state, in connection with the facts, whether, in their opinion, the improper construction of the bridge led to the overflow: International &c. R. Co. v. Klaus, 64 Tex. 293. One having experience in such matters, although not a veterinary surgeon, may be an expert as to injuries to horses: Peer v. Ryan, 54 Mich. 224. A non-expert witness cannot give his opinion as to whether the platform at a railroad station was a dangerous or safe place at the time plaintiff alighted thereon, taking into consideration the night and the nature of the light, unless he has testified as to the condition of the light at the time the accident happened: Chamberlain v. Platt, 68 Conn. 126; s. c. 35 Atl. Rep. 780.

Bates v. Sharon, 45 Vt. 474. See also, Yahn v. Ottumwa, 60 Iowa 429; Atchison &c. R. Co. v. Miller, 39 Kan. 419; Chicago &c. R. Co. v. Gillison, 72 Ill. App. 207; Cookson v. Pittsburgh &c. R. Co., 179 Pa. St. 184; s. c. 36 Atl. Rep. 194; 27 Pitts. L. J. (N. S.) 394; 40 W. N. C. (Pa.)

32

101. Testimony of a brakeman who sustained injuries by the alleged negligence of the engineer in starting the train with unnecessary suddenness while the brakeman was releasing the brakes, that the jerk by which his car was set in motion "was an unusually hard jerk," is not objectionable because of its form, it being the only practicable way of testifying to the facts as to whether the suddenness and force were unusual and unnecessary: Birmingham Mineral R. Co. v. Wilmer, 97 Ala. 165; s. c. 11 South. Rep. 886. A witness may properly give his opinion as to which direction animals were thrown by a collision with a train, though he did not see the animals on the track, but has testified to indications along the track soon after the injury, there being opportunity to cross-examine him to test his knowledge upon the question: Ohio &c. R. Co. v. Wrape, 4 Ind. App. 108; s. c. 30 N. E. Rep. 427.

[blocks in formation]

mitting the opinions of non-experts, founded on their personal knowledge, and in connection with facts stated by them, upon such questions as whether a road is or is not in repair, or whether a bridge is or is not sound and safe, etc.33

.37

$7751. Matters Deemed the Subject of Expert Opinion Evidence. -Courts have held the following matters proper subjects of testimony by competent expert witnesses :-The proper method of loading cars ;34 the proper course to pursue in case of stock suffering from heat during transportation;35 the strength and character of different kinds of wood, the distance in which a moving train or car can be stopped the distance that cattle on a railroad track can be seen by an engineer;38 the usages of navigation as to the execution of particular manœuvres,39 the duty of an engineer to look back to see if everything is all right and that he has the whole of his train before he shuts off steam before going down grade;40 the adequacy of outlets for water through a railroad embankment,41 the sufficiency of ropes and pulleys used to suspend electric lamps,

Taylor v. Monroe, 43 Conn. 36; Ellsworth, J., in Dunham's Appeal, 27 Conn. 192, 198; Laughlin V. Grand Rapids St. R. Co., 62 Mich. 220; s. c. 28 N. W. Rep. 873; Bates V. Sharon, 45 Vt. 474.

McCarthy v. Louisville &c. R. Co., 102 Ala. 193; s. c. 14 South. Rep. 370; McCray v. Galveston &c. R. Co., 89 Tex. 168; s. c. 3 Am. & Eng. R. Cas. (N. S.) 276; 34 S. W. Rep. 95; rev'g s. c. 32 S. W. Rep. 548; Texas &c. R. Co. v. Lyons (Tex. Civ. App.), 3 Am. & Eng. R. Cas. (N. S.) 316; s. c. 34 S. W. Rep. 362 (no off. rep.).

Lindsey v. Chicago &c. R. Co., 36 Minn. 539; s. c. 33 N. W. Rep. 7.

Gerbig v. New York &c. R. Co., 75 Hun (N. Y.) 605; s. c. 59 N. Y. St. Rep. 624; 27 N. Y. Supp. 594. Timbers used in the construction of a scaffold, see Boettger v. Scherpe &c. Iron Co., 124 Mo. 87; s. c. 27 S. W. Rep. 466; Prendible v. Connecticut River Man. Co., 160 Mass. 131; s. c. 35 N. E. Rep. 675.

37 Alabama &c. R. Co. v. Linn, 103 Ala. 134; s. c. 15 South. Rep. 508; Howland v. Oakland Consol. St. R. Co., 110 Cal. 513; s. c. 42 Pac. Rep. 983; Maxwell v. Wilmington City R. Co., 1 Marv. (Del.) 199; s. c. 40 Atl. Rep. 945; Chicago City R. Co. v. Taylor, 170 Ill. 49; s. c. 48 N. E. Rep. 831; 9 Am. & Eng. R. Cas. (N.

the value of the hammer

S.) 513; aff'g s. c. 68 Ill. App. 613; Schlereth v. Missouri &c. R. Co., 115 Mo. 87; s. c. 21 S. W. Rep. 1110; Mammerburg v. Metropolitan St. R. Co., 62 Mo. App. 563; s. c. 1 Mo. App. Repr. 578; Meagher v. Cooperstown &c. R. Co., 75 Hun (N. Y.) 455; s. c. 57. N. Y. St. Rep. 679; 27 N. Y. Supp. 504; O'Neill v. Dry Dock &c. R. Co., 36 N. Y. St. Rep. 934; s. c. 15 N. Y. Supp. 84; Pender v. Brooklyn City R. Co., 84 Hun (N. Y.) 460; s. c. 65 N. Y. St. Rep. 573; 32 N. Y. Supp. 366; Tholen v. Brooklyn City R. Co., 10 Misc. (N. Y.) 283; s. c. 63 N. Y. St. Rep. 269; 30 N. Y. Supp. 1081.

Gulf &c. R. Co. v. Campbell, 49 Fed. Rep. 354; s. c. 4 U. S. App. 133; Gulf &c. R. Co. v. Childs, 49 Fed. Rep. 358; s. c. 4 U. S. App. 200; Gulf &c. R. Co. v. Ellidge, 49 Fed. Rep. 356; s. c. 4 U. S. App. 136; Gulf &c. R. Co. v. Washington, 49 Fed. Rep. 347; s. c. 4 U. S. App. 121. 3D Van Pelt v. The Alaska, 33 Fed. Rep. 107.

40 Lake Shore &c. R. Co. v. Terry, 14 Ohio C. C. 536; s. c. 7 Ohio Dec. 597.

41 Baltimore &c. R. Co. v. Hackett, 87 Md. 224; s. c. 39 Atl. Rep. 510.

42 Excelsior Electric Co. v. Sweet, 57 N. J. L. 224; s. c. 48 Am. & Eng. Corp. Cas. 196; 30 Atl. Rep. 553.

.45

test as a means of discovering defects in car wheels;43 the effect upon the safety of a bridge of the loosening of timbers forming a brace of the bridge; the effect on the strength of a bridge of decayed timbers therein, and the ordinary life of timbers like those in the bridge;4 the distance from a track at which one can stand with safety while a train under speed is passing, which of two different types of spark arresters discharges the most and largest sparks,47 as to whether a floor was constructed with sufficient strength to withstand a crowd using it for the purpose for which it was intended.48

§ 7752. Further of Matters Deemed the Subject of Expert Testimony-Master and Servant.-The following matters have been held proper subjects of expert opinion evidence in actions for injuries to a servant: The sufficiency of the repairs of a machine or appliance; 49 the duty of the fireman to notify an engineer of signals given by a brakeman about to couple a car to the tender, where the engineer is in such a situation that he cannot see the brakeman;50 the necessity of a fireman in addition to an engineer for the operation of an engine with due regard for the safety of other employés;51 the necessity of two brakemen upon railroad trains,52 the proper position of a brakeman riding upon a car kicked along a track in switching; the propriety of a train dispatcher's orders, the relative likelihood of hardwood and softwood floors in factories becoming slippery;55 the danger of an operator getting his hands caught in a dangerous machine and what precautions to take to prevent it;56 the sufficiency of stringers used on scaffolds;57 the proper method of timbering mines;58 the

43 Pittsburgh &c. R. Co. v. Sheppard, 56 Ohio St. 68; s. c. 46 N. E. Rep. 61; 37 Ohio L. J. 177; 6 Am. & Eng. R. Cas. (N. S.) 528; 60 Am. St. Rep. 732.

"Bettys v. Denver Twp., 115 Mich. 228; s. c. 4 Det. Leg. N. 832; 73 N. W. Rep. 138.

52 Union &c. R. Co. v. Novak, 61 Fed. Rep. 573; s. c. 15 U. S. App. 400.

53 Reifsnyder v. Chicago &c. R. Co., 90 Iowa 76; s. c. 57 N. W. Rep. 692.

+ Lewis v. Seifert, 116 Pa. St. 628; s. c. 11 Atl. Rep. 514; 20 W. N.

45 'Morgan v. Fremont Co., 92 Iowa C. (Pa.) 145. 644; s. c. 61 N. W. Rep. 231.

Culver v. Alabama &c. R. Co., 108 Ala. 330; s. c. 18 South. Rep. 827.

47 Collins v. New York &c. R. Co., 109 N. Y. 243; s. c. 16 N. E. Rep. 50.

48 Fox v. Buffalo Park, 21 App. Div. (N. Y.) 321; s. c. 47 N. Y. Supp. 788.

"Bemis v. Central Vermont R. Co., 58 Vt. 636.

50 Brown v. Louisville &c. R. Co., 111 Ala. 275; s. c. 19 South. Rep. 1001.

"Wright v. Southern &c. Co., 15 Utah 421; s. c. 49 Pac. Rep. 309.

55 Weber Wagon Co. v. Kehl, 139 Ill. 644; s. c. 29 N. E. Rep. 714; aff'g s. c. 40 Ill. App. 584.

50 New York Biscuit Co. v. Rouss, 74 Fed. Rep. 608; s. c. 45 U. S. App. 45; 20 C. C. A. 555; Peterson v. Johnson-Wentworth Co., 70 Minn. 538; s. c. 73 N. W. Rep. 510 (as to whether it was practicable to safeguard particular machinery).

57 Stanwick v. Butler-Ryan Co., 93 Wis. 430; s. c. 67 N. W. Rep. 723.

56 Grant v. Varney, 21 Colo. 329; s. c. 40 Pac. Rep. 771; Island Coal Co. v. Neal, 15 Ind. App. 15; s. c. 42 N. E. Rep. 953; 43 N. E. Rep. 463;

distance which a cage used in a mine will drop when detached from the hoisting rope, before its descent ought to be checked and stopped by approved safety catches.59

§ 7753. Competency of Experts.-An opinion is entitled to no weight with the court or jury unless it comes from a person who has given satisfactory evidence that he is possessed of such experience, skill, or science in the particular subject of inquiry as entitles his opinion to pass for scientific truth. The knowledge contemplated by the rules is knowledge acquired either from actual study or long experience in the particular field toward which the inquiry is directed. The mere opportunity for observation only will not

61

Acme Coal Co. v. Kusnir, 71 Ill. App. 446.

59 Diamond Block Coal Co. v. Edmonson, 14 Ind. App. 594; s. c. 43 N. E. Rep. 242.

00 Carr v. Northern Liberties, 35 Pa. St. 324. See also, Graney v. St. Louis &c. R. Co., 157 Mo. 666; s. c. 57 S. W. Rep. 276; 50 L. R. A. 153. To render the testimony of an expert admissible on the question whether a steam-boat was properly landed and as to what officers were required, he must be shown to have not only sufficient knowledge and experience of the subject-matter, but acquaintance with the class and dimensions of the boat and the character and condition of the river and shore at the place of landing, or must have heard them described by witnesses in the case: Sebrell v. Barrows, 36 W. Va. 212; s. c. 14 S. E. Rep. 996.

61 Schlaff v. Louisville &c. R. Co., 100 Ala. 377; s. c. 14 South. Rep. 105 (railroad employé for fifteen years competent on question of proper position of brakeman); Denver &c. R. Co. v. Smock, 23 Colo. 456; s. c. 48 Pac. Rep. 681 (brakeman of fifteen years' experience competent on question of condition of drawheads); Laufer v. Bridgeport Traction Co., 68 Conn. 475; s. c. 37 L. R. A. 533; 2 Chic. L. J. Wkly. 287; 37 Atl. Rep. 79; Chicago v. Seben, 165 Ill. 371; s. c. 46 N. E. Rep. 244; aff'g s. c. 62 Ill. App. 248 (eighteen years in sewer business competent on question of proper construction of sewer); Louisville &c. R. Co. v. Berkey, 136 Ind. 181; s. c. 35 N. E. Rep. 3 (blacksmith and likewise experienced section hand and brake

60

man competent as to strength and quality of iron in coupling-pin); Kerns v. Chicago &c. R. Co., 94 Iowa 121; s. c. 62 N. W. Rep. 692 (railroad man of twenty years' experience competent on question of manner of making coupling though he has never made one himself); Richardson v. Douglas, 100 Iowa 239; s. c. 69 N. W. Rep. 530 (engineer of forty years' experience competent on question of spark arresters); Whitsett v. Chicago &c. R. Co., 67 Iowa 150; Fort Scott v. Canfield (Kan.), 26 Pac. Rep. 697; Hartford Co. v. Wise, 71 Md. 43; s. c. 18 Atl. Rep. 31 (knowledge of stream for forty-five years qualifies witness to state whether span and height of bridge' sufficient to let water pass); Perkins v. Strickney, 132 Mass. 217; Watson v. Minneapolis St. R. Co., 53. Minn. 551; s. c. 55 N. W. Rep. 742 (conductor of street car for two months competent on question of distance in which street car can be stopped); Price v. Richmond &c. R. Co., 38 S. C. 199; s. c. 17 S. E. Rep. 732 (freight conductor of long experience competent on makeup of trains); Bonner v. Mayfield, 82 Tex. 234; s. c. 18 S. W. Rep. 305 (twenty years' experience in construction of railroads shows competency to express opinion as to adequacy of culverts); St. Louis &c. R. Co. v. Johnston, 78 Tex. 536; s. c. 15 S. W. Rep. 104 (railroad man of large experience, though not a civil engineer, competent on question of railroad construction). A sufficient predicate for an opinion as to the competency of a person to be superintendent of a mine is laid by the testimony of the witness that he has been en

« SebelumnyaLanjutkan »