38 Kan. 540 | Kan. | 1888
Opinion by
This action was brought to recover damages for the erection of a mill-dam in the Saline river at a point some six miles below the mill of the plaintiff, and to enjoin its maintenance at such a height as to cause the water to back up upon the mill of the plaintiff. Plaintiff alleged that he was and is the owner of a mill on the Saline river, and that in 1883 the defendant erected a mill on said stream some six miles below plaintiff's mill, and raised the dam to such a height that it caused the water in said stream to back up and upon the mill and wheel of his mill, to his
“The court has permitted various witnesses to give their opinions as to whether or not there was back-water near plaintiff’s mill. The jury will give such testimony such weight as they think it entitled to. You will consider*542 whether such opinions were justified by the facts upon which they were based; what opportunities they had to be informed of the facts, and how competent they were to form correct opinions upon that question. If you think the reason anyone has given for his opinion is not good, you should not take it. And with reference to all such testimony, I say, you are not bound to take the opinion of any witness upon the question of back-water. It is your own opinion upon the matter, and the conclusion you draw from the facts proven, that should determine your verdict, and not what any other person says or thinks.”
If such evidence is competent in cases of this kind, then the above instruction was erroneous. The court said, “It is your own opinion upon the matter, and the conclusion you draw from the facts proven, that should determine your verdict, and not what any other person says or thinks.” If the jury were to determine from the facts proven, and not from what any person said or thought, they would have to exclude the opinion of these witnesses. It was competent for the jury in connection with the facts to consider the testimony of these experts; they were not obliged to take the opinion of any one or all of them; they were to weigh their testimony in the light of surrounding circumstances, as the testimony of the other witnesses, and when so weighed to give it such consideration as in their judgment it was entitled to. The plaintiff, however, insists that expert testimony was not competent, and that therefore the instruction of the court was proper. The fact to be determined was, whether or not by the erection of the dam by the defendant, back-water was caused at the mill of the plaintiff so as to obstruct his wheel. The evidence discloses that a short distance below the plaintiffs mill there had been a land-slide, which had narrowed the channel of the stream; and one of the questions to be determined was what effect this narrowing of the channel would have upon the water immediately above the land-slide and below the dam of the plaintiff; and for this purpose experts were called to give their opinions. We think this was competent; it was the testimony of persons having a peculiar knowledge, and who,
“The testimony of Brown as an expert ought to have been admitted. No objection was made to his competency, and nothing is better established than the proposition that this kind of evidence is admissible as to the effect of obstructions in causing back-water. Ordinarily, it is true, witnesses testify only as to facts, leaving it to the jury to draw their conclusions; but upon matters of science, and questions requiring peculiar skill, an exception is made.”
(See also Hammond v. Woodman, 41 Me. 178; Walker v. The State, 58 Ala. 393; Blood v. Light, 31 Cal. 115; Clason v. City of Milwaukee, 30 Wis. 316.)
The testimony of expert witnesses, this court has repeatedly held, must be considered like all other testimony; it must be tried by the same tests, and receive just such weight as the witness is entitled to, in connection with all the circumstances of the case. (See A. T. & S. F. Rld. Co. v. Thul, 32 Kas. 255; Shellabarger v. Nafus, 15 id. 547.) From these authorities it will clearly appear that the instruction of the court is erroneous.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.