Dedman v. Oregon Short Line R. R. Co. , 57 Idaho 160 ( 1936 )

The authorities are not in accord on the question of the right to ask a witness, familiar with what was done, as to whether anything else could have been done to avoid an accident. Supporting the theory that such a question propounded to the engineer, who was operating the engine which pulled the train that injured plaintiff and who was one of the defendants in this action, counsel for respondents cite the following cases which are in point:Davis v. Boston M. R. R., 75 N.H. 467, 76 A. 170, wherein it is said:

"After the fireman had testified in detail as to what he and the engineer did to stop the train, the defendants were permitted, subject to exception, to ask him if he knew of anything either could have done which was not done to prevent the accident. It would have been competent for the plaintiff to show such a failure on the part of either of these men; consequently it was competent for the defendants to negative it. If the plaintiff's contention, that the question called for an expression of the opinion of the witness, and not the statement of a fact within his knowledge, were sound, the result for which he contends would not necessarily follow. In this state the opinion of a witness 'concerning matters of daily occurrence and open to common observation' is admissible if the court finds it will promote the discovery of the truth. . . . . In other words, the test of admissibility for opinion evidence, as well as for most other evidence, is to inquire whether it will aid the triors. . . . . Consequently, the opinion of a witness in respect to a matter with which he is shown to be familiar is usually admitted, if the court finds that his knowledge is superior to that of the triors."

Champlin v. Pawcatuck Valley St. Ry. Co., 33 R.I. 572,82 A. 481, wherein the court said, without assigning any reason for saying it:

"(6) The fifth exception is to the admission by the court of questions Nos. 13 and 14 and the answers thereto in the deposition of the witness William Adams, as found on page 86 of the transcript of testimony: '13 Q. Could Mr. Champlin have passed the automobile, which was coming towards him, in any other way than he did?' '14 Q. Could he have got away from the track, or pulled away from the track, any sooner than he did?' These questions were read from the deposition of the witness taken before the trial to be used at the trial. No objection was made to either before the magistrate. The questions were properly admitted.

"(7) The sixth exception is to the admission by the court of question No. 16 and the answer thereto in the deposition of the witness William Adams, as found on page 87 of the transcript of testimony: '16 Q. Was there room at that place, where he met the automobile, for an automobile and a team to pass in the traveled part of the road?' The question was proper.

"(11) The tenth exception is to the admission by the court of questions Nos. 91 and 92 and the answers thereto of the plaintiff George E. Champlin, as found on pages 115 and 116 of the transcript of testimony: '91 Q. Was there anything you can think of you could have done to have got out of the way faster than you did?' 'Q. 92. Was there anything you could have done there that you didn't do to get out of the way sooner than you did?' The questions were properly admitted."

Merrihew v. Goodspeed, 102 Vt. 206, 147 A. 346, 66 A.L.R. 1109, wherein the following is to be found:

"(1) On the direct examination of the defendant by his own counsel he was asked: 'Do you know of anything you could have done that you did not do to avoid hitting this child?' Subject to exception by plaintiff, he answered: 'I know of nothing I could have done.' "

Commenting on this testimony the court said:

"The testimony was proper and material upon the defendant's theory of the case. It was not the expression of an opinion upon the question whether the proper degree of care had been exercised. It was not a matter of speculation, and it was material to know what the defendant did, and what, if anything, he left undone, regarding the management and operation of his automobile."

With respect to like testimony, by another witness who was riding with the defendant, the court said:

"What we have said in considering the previous exception to the defendant's testimony is applicable also. Error does not appear."

Respondents also cite Smith v. Galveston-Houston Elec. Ry.Co., (Tex.Com.App.) 277 S.W. 103, which does not appear to be in point. The also cite Hayhurst v. Boyd Hospital, 43 Idaho 661,254 P. 528, in support of the theory that "permitting an expert to give an ultimate expression of opinion as to the result that can be obtained under given circumstances is not a usurpation or invasion of the province of the jury."

Let us put out of consideration the right to prove by an expert witness his opinion on the matter with respect to which the jury must render its verdict, as not decisive of the question under consideration, and confine our investigation to respondent' right to have the defendant engineer answer the question: "Was there anything that you know of you could have done with the engine, with the appliances at hand and under the circumstances, which you did not do, to stop it quicker?" Also to have the witness Barnes, a locomotive engineer, produced as a witness on behalf of respondents, answer the question: "What, according to your experience, would you be able to do if whenyou were in that position you were looking backward from the cab and saw a person and had occasion to stop the train, what would you do to the train, and how long would it takeyou?" (Emphasis ours.)

The weight of authority is against the theory that such testimony is admissible, as shown by the following cases cited by appellant: Springfield Consol. Ry. v. Welsch, 155 Ill. 511,40 N.E. 1034, wherein the following is found:

"Again, it is urged that the trial court erred in refusing to permit appellant to ask the motorman the question: 'Well, tell the jury whether or not you used all the means and all the power you had to stop the car and prevent it running over him.' Such ruling was not erroneous, for the question was suggestive. Moreover, the witness stated, in answer to other questions, exactly what he did. Whether or not all he did was all he could have done was for the jury to determine, and not a matter upon which the witness might express his opinion."

In Springfield Consol. Ry. Co. v. Puntenney, 200 Ill. 9,65 N.E. 442, the following appears:

"After the motorman, as a witness for the railway company, had given his version of the accident, and had stated what he did to avoid it, counsel for said company asked him, 'Do you know of anything you could have done, that you did not do, to avoid that collision there? The court sustained plaintiff's objection, and counsel excepted. It is apparent that whether the witness could have done more than he did to avoid the accident was a question for the jury, and not for the witness, to decide. In other words, it was not proper for the witness to state that he omitted no act of care or caution to avoid the injury. True, the form of the question was somewhat less objectionable on this ground, inasmuch as it was whether he knew of anything he could have done, and not whether he could have done anything he did not do. But its purpose was the same, and it would have merely elicited the opinion that the witness, acting for the company, did all that he could have done to prevent the collision."

The opinion further shows the witness had already testified to the facts from which he had been asked to draw a conclusion.

Bruggeman v. Illinois Cent. R. Co., 147 Iowa, 187,123 N.W. 1007, Ann. Cas. 1912B, 876, contains the following:

"The engineer of the train was a witness for the defendant, and questions were propounded to him which were objected to as shown. Rulings of the court are also given, as well as the answers of the witness: 'Q. Taking this train as you was operating that day, applied and constructed as it was, on the track at Toeterville, where you were then running and operating this train, could you have s topped this train by any possibility in any shorter distance than the train was in fact stopped? (Plaintiff objects as calling for a conclusion of the witness. Objection overruled. Plaintiff excepts.) A. No, sir; I could not. Q. Could it have been stopped by any human agency in any quicker time on that particular day than it was stopped then? (Plaintiff objects as calling for a conclusion.) Q. In your opinion? (Objection overruled. Plaintiff excepts.) A. No, sir.' As these questions called for the very matters which the jury was to determine, rather than answers to hypothetical questions, or as to the time in which such a train might have been stopped, the court was in error in overruling the objections. . . . ."

In Jeffries v. Seaboard A.L.R. Co., 129 N.C. 236,39 S.E. 836, it is said:

"The next exception is that the following question to the engineer was ruled out on plaintiff's objection: 'After you saw the child, was anything not done that could have been done to save the child?' This, if a proper matter of proof, was to ask the witness to answer a question that the jury were to pass upon. This has been fully discussed by Cook, J., in Raynor v.Wilmington Railroad Co., 129 N.C. 195, (at this term)39 S.E. 821, and needs no further citation of authority."

In the Raynor case the decision was on the question of admissibility of testimony as to whether more force was used than necessary in expelling a passenger from a railroad train. The opinion on that point is reflected in the third section of the syllabus, as follows:

"In an action by a passenger for wrongful ejection from a train, a question whether any more force was used than was necessary was properly excluded as calling for an opinion."

The Supreme Court of Alabama, in Taylor v. Lewis, 206 Ala. 338,89 So. 581, approved a ruling sustaining an objection to this question:

"I will ask you this question: Could you have stopped the car any earlier than you did; could that car have been stopped any quicker than it was by you at that time?"

The court observed:

"It calls for conclusions that should be drawn by the jury from facts given by the witness. The witness should tell what he did, give the jury all the facts, so they could decide whether he could have 'stopped any quicker' or 'any earlier' the car 'than it was by him.' It is true that conclusions are frequently collective facts that a witness can give, express an opinion on, when known to him. When the facts can be given, without an opinion, it should be done, and let the jury draw the inferences. In Birmingham R. E. Co. v.Jackson, 136 Ala. 279, 34 So. 994, the court said:

" 'The testimony of Ayers that the motorman was "doing all he could to stop" was illegal.' "

In Nosler v. Chicago, B. Q. Ry. Co., 73 Iowa, 268,34 N.W. 850, the following is found:

"The engineer testified that he was about 200 feet from the crossing when he saw the team approaching the crossing, and he said: 'Very frequently they come within ten or fifteen feet, and then stop. I was not doing anything towards stopping the engine. When they got about ten or fifteen feet from the railroad, I saw they were not going to stop, so I gave the alarm-signal with the whistle. Think the whistle was open till the horses were struck. I set the air-brake with one hand, and, after I let go the whistle with the other hand, I reversed the engine about the time I struck the team. Am not sure about giving steam in the back motion. I did all there was time to do.' Thereupon he was asked by counsel for the defendant to state 'whether or not you did everything you could, from the time you discovered the team was likely to be struck until it was struck.' An objection to this question was properly sustained, for the reason it asked for the opinion of the witness; and, besides this, he had just stated all he did, and in fact answered the question. The court, therefore, did not err in overruling the question asked."

The Supreme Court of Colorado, in Denver R. G. R. Co. v.Vitello, 34 Colo. 50, 81 P. 766, said:

"The court erred in permitting answers to the following question: 'Who was responsible for the proper securing of the train upon a grade?' This question was objectionable for two reasons: First. It was the very matter to be determined by the jury, and was therefore an invasion of its province. Questions which call for the opinion of a witness upon the ultimate fact to be tried by the jury are improper. . . . . If it were permissible to call witnesses for the purpose of answering the question which is submitted to the jury, then trials by law would soon become farcical, because each of the parties litigant could call to the stand their friends and partisans, and inquire of them what the verdict of the jury should be. This question is objectionable for another reason. It is calling for the opinion of a witness upon a matter which is not a proper subject for expert testimony, and in the same connection we may say that the trial court erred in permitting witnesses to testify as to what they would have done under like circumstances had they been in charge or control of the train, or had they been the conductor."

The Supreme Court of California, in Fogel v. San Francisco S. M. Ry. Co., 5 Cal. Unrep. 194, 42 P. 565, said:

"William Craven was a witness for defendant, and testified that he was an oiler on the electric road of the defendant, his business being to oil the switches and curves; that it was his duty to examine the switches, and see that they were in good order, and that on the day the accident occurred he examined the switch where plaintiff was hurt at about a quarter past 6 in the morning and again about 11 o'clock; and that on both of these occasions it was in good order. He was then asked the following questions: 'Mr. Craven, was anything omitted that could have been done, that a man of foresight could have advised, or were you as careful as a man could have been to have avoided an accident, on this day?' 'Well, now, in your opinion as a railroad man, used to working on railroads, was everything done that could have been done in the matter to obviate or prevent this accident?' Both questions were objected to by plaintiff upon the ground that they were immaterial, irrelevant, and incompetent, and the objections were sustained. The rulings of the court were correct; both questions call for the opinion of the witness upon a matter of fact, which was the principal question at issue, and which it was the sole province of the jury to decide."

The question propounded to the witness Barnes as to what he would have done in order to stop the train, and particularly as to how long it would take him to do it, is not a subject for expert testimony. When a jury has been told what is necessary to be done in order to stop a train it knows as well as anyone can know how long it ought to take to do these necessary acts. It is a matter of common knowledge that some men act more quickly than others in doing things which it is their every day duty to do. It follows that the length of time which should be consumed in shutting off the steam, putting the engine in reverse, applying the brakes, and any other acts testified to and described as being necessary in order to make a quick stop are as well within the knowledge of one man as another. However, the distance a train will travel,under given circumstances, during and after the performance ofthe acts intended to stop it, is not a matter of commonknowledge. That is a proper subject for expert testimony.

The Supreme Court of the United States, in Milwaukee St.Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L. ed. 256, said:

"A second exception taken in the court below, and here insisted upon, is that the court refused to permit the defendants to prove by witnesses who were experts, experienced in the business of fire insurance, and accustomed by their profession to estimating and calculating the hazard and exposures to fire from one building to another, and to fixing rates of insurance, that, owing to the distance between the elevator and the mill, and the distance between the elevator and the lumber piles, the elevator would not be considered as an exposure to the mill or lumber and would not be considered in fixing a rate thereon, or in measuring the hazard of mill or lumber.

"This exception is quite unsustainable. The subject of proposed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a judgment. In regard to such matters, experts are not permitted to state their conclusions. In questions of science their opinions are received, for in such questions scientific men have superior knowledge, and generally think alike. Not so in matters of common knowledge. Thus, it has been held that an expert cannot be asked whether the time during which a railroad train stopped was sufficient to enable the passengers to get off. . . . ."

In Gavisk v. Pacific Railroad Co., 49 Mo. 274, it is said:

"While the conductor was upon the stand, after having testified to his experience upon railroads, he was asked to 'state whether or not, if James Gavisk had, at the time of the cars striking, been holding on to the brakes and exercising ordinary care and prudence in his own protection and preservation, he would have been thrown from the cars.' This question was objected to and ruled out, and properly so. The only pretext for its admission would be upon the ground that he was an expert. An expert is supposed to have some special knowledge over and above men of ordinary education, derived from his peculiar pursuits or experience, that entitles his opinion to be received in evidence. But 'when this experience is of such a nature that it may be presumed to be within the common experience of all men of common education moving in the ordinary walks of life, there is no room for the evidence of opinion; it is for the jury to draw the inference.' . . . . To have permitted this question would have been to take the case from the jury and submit it to the witness, and there was no fact involved in it that required peculiar or professional knowledge."

The Supreme Court of Nebraska, in Read v. Valley Land Cattle Co., 66 Neb. 423, 92 N.W. 622, quoted from the Supreme Court of Ohio in Railroad Co. v. Schultz, 43 Ohio, 270,1 N.E. 324, 54 Am. Rep. 805, with respect to the rules governing the admissibility of the opinions of witnesses as evidence, as follows:

" '(1) That witnesses shall testify to facts and not opinions is the general rule. (2) Exceptions to this rule have been found to be, in some cases, necessary to the due administration of justice. (3) Witnesses shown to be learned, skilled, or experienced in a particular art, science, trade, or business may, in a proper case, give their opinions upon a given state of facts. This exception is limited to experts. (4) In matters more within the common observation and experience of men, nonexperts 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 such opinions involve conclusions material to the subject of inquiry. (5) In such cases the witnesses are required, so far as may be, to state the primary facts which support their opinions. (6) Where it is practicable to place palpably before the jury the facts supporting their opinions, the witnesses should be restricted in their testimony to such facts, and the jurors left to form their opinions from these facts, unaided by the mere opinions of the witnesses. (7) As the warrant for the admission of the opinions of witnesses as evidence is found in some exception to the general and very salutary rule, which requires that only facts be stated to the jury, it is the duty of a reviewing court to see that the admission of mere opinions as evidence was within some one of the established exceptions to such general rule; and where it does not appear upon the whole record but that the jury was equally capable with the witnesses of forming an opinion from the facts stated, it is error to admit in evidence the opinion of witnesses.' "

I am agreed with that part of the opinion of Chief Justice Givens wherein it is said "What had to be done to stop the train was clearly a matter for someone who was skilled as an engineer or in the operation of engines to state." That part of the testimony, however, is not what is complained of. Appellant complains of respondent, McAtee, after he had stated everything he did to stop the train, being asked and permitted to answer the question: "Was there anything that you know of you could have done with the engine, with the appliances at hand and under the circumstances, which you did not do, to stop it quicker?" Appellant further complains of the testimony of Barnes, — not that he was permitted to state what had to be done to stop the train, but "What, according to your experience, would you be able to do if when you were in that position you were looking backward from the cab and saw a person and had occasion to stop the train, what would you do to the train, and how long would it take you?" That question called for an answer which was entirely irrelevant and immaterial.

In his concurring opinion, Mr. Justice Ailshie attempts to distinguish between decisions where objections to questions as to what the witness would have done, or whether anything else could have been done, to avoid the accident, have been sustained and the rulings have been assigned as error, from cases where objections to like questions have been overruled and the admission of the evidence has been assigned as error. A distinction does not exist. The ground of objection to such testimony is that it is irrelevant and immaterial. It is irrelevant and immaterial regardless of the ruling made on objection to the question by means of which it was sought to be elicited. The fact that in a great many cases trial judges have ruled correctly and excluded such testimony cannot be successfully urged against the soundness of the doctrine by which it should always be excluded.

If I correctly understand the theory of Mr. Justice Ailshie, it is that a ruling to the effect that such testimony is inadmissible is not the equivalent of holding it would have been prejudicial error to admit it. He says: "An examination of the cases, cited by appellant on this issue, will disclose that many of them are cases where the objection to the question was sustained, and the contention was made on appeal that the court erred in not allowing the answer. On appeal the various courts, from which these cases come, held that the ruling of the court was not erroneous. . . . . These rulings, however, are not necessarily the equivalent of holding, that it would have been prejudicial error to allow the question to be answered." I am neither able to follow that reasoning nor reach that conclusion.

The theory that the error in the admission of the testimony of the witness Barnes, as to what he would have done to stop the train and how long it would have taken him to do it, was harmless, because his answer to the question propounded to him whereby that testimony was elicited was shown by his cross-examination to have been "chiefly speculation and guesswork," is unsound. The trial judge ruled that the question as to what Barnes would have done to stop the train and how long it would take him to do it should be answered, and the jury must have inferred from the ruling that the testimony was relevant and material and competent to establish a fact in issue. Furthermore, he was a locomotive engineer and knew whereof he spoke. Even if the testimony of this witness had been based on "speculation and guesswork," the jury cannot be presumed to have known it should have been excluded. There is certainly nothing to show it was not considered and acted upon in reaching the verdict. The witness was produced by respondents and testified to what they apparently expected him to. The purpose of his testimony was to defeat appellant's cause of action, and we have no right to assume it did not tend to do so.

In considering Instruction No. 11 we must not lose sight of the fact that two actions were being tried together; one by the husband and wife for damages resulting from injuries to her, the other by the husband for damages resulting from injuries to him. Only the action commenced by the husband, alone, has been appealed, and the question presented with respect to Instruction No. 11 is whether or not it correctly states the law of contributory negligence as applied to that case. For convenience it will be repeated here:

"You are instructed, gentlemen of the jury, that if you find that the plaintiffs of their own accord passed from the limits of the traveled road as it was then maintained by public authorities and needlessly stood beyond such limits, either for the purpose of boarding the train or any other purpose, and that in so doing they negligently subjected themselves to danger and such act either caused or contributed to their falling under the train, then you must render a verdict against the plaintiffs and in favor of the defendants, unless you shall further find that defendant's engineer was guilty of negligence under the doctrine of last clear chance, as hereinafter defined, and under that principle, could, in the exercise of ordinary care, have avoided injuring the plaintiffs, but failed to do so."

In view of the fact that the two cases were tried together the jury should have been instructed with respect to the law applicable to them separately, in all instances where it did not apply to them jointly. There was evidence sufficient, if believed by the jury, to have justified a finding that appellant and his wife stood at the crossing of the wagon road and railroad while the train was going by; that the wife negligently went too close to the edge of the snow embankment which caved off and caused her to fall and slide toward the moving train, placing her in a position of great danger of serious injury and death, and that her husband, appellant in this case, entirely free from negligence, in attempting to save her, fell against the train and was seriously injured.

The instruction is not free from uncertainty as to the meaning of the judge. Did he mean to tell the jury that if the wife was guilty of negligence which contributed to bringing about the accident and resultant injury, the husband's cause of action would thereby be defeated? If that is what the instruction means it is erroneous. If it is not what it means, the language employed is insufficient to clearly state what was meant. The parties litigant were entitled to have the jury correctly and clearly instructed on this important feature of the case, and this instruction is, to say the least, very uncertain and misleading.

The judgment should be reversed and a new trial granted.

Holden, J., concurs in this dissenting opinion.