179 Pa. 321 | Pa. | 1897
Opinion by
The learned judge, manifestly against his own judgment,
The rule on this subject is that where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, the description by the witness must of necessity be allowed to be supplemented by his opinion, in order to put the jury in position to make the final decision of the fact. But where the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or other, are not admissible. The rule in this form was settled by Graham v. Penn. Co., 139 Pa. 149, and has not been departed from. Whether its application to existing facts in subsequent cases has always been correct, is a matter on which opinions may naturally differ, because as was said in that case quoting Chief Justice Shaw in N. E. Glass Co. v. Lovell, 7 Cush. 321, “ there is extreme difficulty in laying down any rule precise enough for practical application, and the only proper course is to keep the principle steadily in view, and apply it according to the circumstances of each case.”
The learned judge below considered the principle as modified by some of the later cases, and therefore, as already said, against his own opinion, admitted the evidence. In so doing however he gave the cases too broad an effect. They were not intended to introduce any modification of the rule in Graham v. Penn. Co. In McNerney v. Reading City, 150 Pa. 611, the case principally relied on at the trial, the objection made was not to the nature of the evidence but to the qualifications of the witness as an expert. Our Brother McCollum after referring to this fact, cited Graham v. Penn. Co., and quoted as applicable
In the other case referred to by the learned court below, Kraut v. R. W. Co., 160 Pa. 327, the point was not discussed in the opinion, and the condition of the street upon which the witness’s opinion was given, whether there was a hole, or only loose cobble stones, or both, was in dispute and left by the evidence very uncertain. So in Kitchen v. Union Township, 171 Pa. 145, the circumstances were unusual and complicated, and were thought to bring the case within the rule admitting the witness’s opinion, but no departure from the rule itself was intended or indicated. On the other hand, in Dooner v. Canal Co., 164 Pa. 17, it was held that whether the absence of a bar or “ grab-iron ” on a freight car made it defective was a matter for the judgment of a man of ordinary intelligence and observation, and not therefore for a witness’s opinion, citing and affirming the rule in Graham v. Penn. Co.
There remains the serious question of negligence on the part of defendant and of plaintiff. The bridge in question was not in the built-up portion of the borough, but in a rural district close to the township line. It was the full width of the road thirty-three feet, seventeen feet in length by the city surveyor’s measurement, and five feet above the bottom of the run. The only complaint made of it is the absence of a hand rail, or guard on the outside. As said by the learned judge below, it is difficult to see how any sober person exercising reasonable care would be likely to walk off such a bridge. Under such circumstances there was no sufficient evidence of negligence on the part of the borough to submit to the jury. It is a much weaker case than Monongahela City v. Fischer, 111 Pa. 9.
The plaintiff was clearly guilty of contributory negligence. About 9 o’clock at night she started out without a lantern to hunt her cow which had broken loose and got away. She pro
Judgment reversed.