41 Wash. 314 | Wash. | 1906
This is an action to recover damages for personal injuries suffered by Joseph Cook, a minor, while riding» on one of the defendant’s logging trains. The case was before this court on a former appeal and will be found reported in 36 Wash. 36, 78 Pac. 39. We deem it sufficient to say, in addition to the statement of the case contained in the former opinion, that one of the grounds of negligence charged was that the train was running at an unusually high and dangerous rate of speed at the time of the accident, to- wit, at the rate of forty miles per hour. The plaintiff had judgment below, and the defendant appeals.
One of the controverted questions at the trial was the rate of speed at which the train was moving at the time the cattle were discovered on the track, the appellant claiming that the train was running from 12 to 15 miles an hour, the respondent claiming that the rate of speed was much higher. To prove the rate of speed, the respondent called two witnesses, neither of whom was present or saw the accident. The witness Frier-mood was in the employ of the appellant for about eight months in all — how long prior to the accident does not appear. His experience in railroading is shown by the following an
“Q. What was the condition that you found there of the logs upon the first set of trucks back of the engine ? A. When I got down there, I found they had shifted forward and shoved the tank into the cab, and some of them were as far as the front of the engine. Q. How do you mean — • A. Shoved by the tank. Q. Pushed right by? A. Bight by the tank, and as far as the front of the engine. Q. What would that indicate, if anything, as to the speed at which the train was going previous to the time when it was stopped, or at the time when the cattle were struck? Mr. Graves: Objected to upon the ground that the witness has not shown himself competent to answer such a hypothetical question or give an opinion upon those facts. Overruled. Defendant excepts. A. It looks to me like the speed would be rather swift down there; engine started suddenly and the logs shifted that way. Q. From the conditions that you found existing there at the time when you went down to the wreck, the distance which the train had apparently run after striking the cattle, and the general condition in which you found it, could you form any opinion as to the rate of speed at which that train was running when it jumped the track? A. Well, I should think that— Mr. Graves: Just answer yes or no. Q. Yes; as to whether you can give an opinion. A. Yes, sil*, I can give an opinion. Q. What, in your opinion, was the speed at which that train was running at the time when the cattle were struck? Mr. Graves: We object to that, may it please your honor, that the witness has not shown that he is in any manner qualified to give an opinion upon such a state of fact, and that his opinion would be entirely valueless as to what the rate of speed might have been. Overruled. Defendant excepts. A. In my opinion, the speed was about thirty miles an hour. Q. How, in your opinion, was*317 that a safe rate of speed to maintain in coming down that grade? A. Mb, sir. Q. Would the engineer have his engine under control going at that rate of speed? A. Mo, sir;- not with a logging train. Mr. Graves: We move to strike out this last answer and question the witness answered, upon the same ground as our objection to the questions above, that the witness is not competent to express an opinion, and the further reason that there is no one would be competent to express an opinion from such facts as this witness saw. The Court: Motion denied. Defendant excepts.”
The experience of the witness Davis was about the same as that of the former, excepting that he was a fireman, instead of a brakeman. His testimony, with the objections thereto, was as follows:
“Q. What, in your judgment, was the rate of speed at which that train was running when it jumped the track? Objected to upon the ground that the witness is not competent, and there are no facts in the case or stated in the question that would enable a witness to form an opinion that would be of any value as evidence in this case. Overruled. Defendant excepts. A. I should think thirty or thirty-five miles an hour.”
It seems to us that the foregoing testimony was incompetent and should have been excluded. It either requires no expert knowledge to enable one to draw an inference as to the rate of speed of a train from the conditions surrounding a wreck caused by it, or the witnesses in this case were not shown to possess such expert knowledge. In the former case, any inference to be drawn was for the jury alone, and the testimony would be incompetent. In the latter case the witnesses themselves were incompetent and their testimony should have been excluded. Furthermore^ all the conditions attending upon the stopping of the trains were not known to the witnesses, nor were they embodied in the questions pi*0'pounded to them. Whether an effort was made to stop the train, or whether it was thrown full sjjeed ahead, and whether all the trucks left the track at the same time, would necessarily have an important bearing on the wreckage produced
In Northern Pac. R. Co. v. Hayes, 87 Fed. 129, the trial court permitted a person struck by a train to state his opinion as to the rate of speed of the train which struck him at the time of the accident. The circuit court of appeals held that this was error, saying:
“The speed of the train which backed into the yard that night, and which struck the plaintiff, was a material question at issue, and much disputed on the trial. The plaintiff did not see the train at all. He was walking in the same direction, ahead of it, and was struck in the back, and thrown, he thinks, 20 or 30 feet; and he says he was never struck by a train before in that way, and had nothing to judge of as to the speed, except that one blow. Nevertheless he was allowed, against the defendant’s objection, to give his opinion of the speed of the train, which he says was very fast, and, he would judge, between 15 and 20 miles an hour. We think this was error. He was simply guessing at the distance he was thrown, and from this, and from the force of the blow on his shoulder, he guessed at the speed of the train. It can hardly be assumed that the jury would not be influenced in*319 any degree by suck testimony. Indeed, tbe very fact that it was held competent, and permitted to be given to tbe jury, would naturally be taken by them as a warrant that some credit might or should be given to an opinion so poorly founded. It is elementary that the admission of illegal evidence over objection necessitates a reversal. Waldron v. Waldron, 156 U. S. 380, 15 Sup. Ct. 383, and cases cited. In order that the court may not disturb a judgment for error, it should appear beyond a doubt that the error complained of did not and could not have prejudiced the rights of the party objecting. Railroad Co. v. O'Reilly, 158 U. S. 337, 15 Sup. Ct. 830.”
And yet it would seem that a person struck by a moving train could form as accurate an opinion as to the rate of speed as the witnesses in this case, who simply viewed the wreck. In Hellyer v. People, 186 Ill. 550, 58 N. E. 245, it was held error to permit physicians to testify as to whether certain injuries could have been inflicted by a railroad train, running at the rate of thirty-five miles per hour. In Chicago etc. R. Co. v. Lewandowski, 190 Ill. 301, 60 N. E. 497, it was held improper to permit railroad men or others to testify that a person could or could not be struck by a freight train running at the rate of twenty-five or thirty miles per hour and survive. In the former case the court said:
*319 “The subject of the proposed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a correct 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. Eot so in matters of common knowledge. (Milwaukee and St. Paul Railway Co. v. Kellogg, 94 U. S. 469.) ‘Whenever the subject-matter of inquiry is of such a character that it may be presumed to lie within the common experience of all men of common education moving in the ordinary walks of life, the rule is that the opinions of experts are inadmissible, as the jury axe supposed in all such matters to be entirely competent to draw the necessary inferences from the facts testified of by the witnesses.’ (Rogers on Expert Testimony, Sec. 8; Ohio and Mississippi
“Courts have gone far enough in subjecting life, liberty, and property to the mere speculative opinions of men claiming to be experts, and we are not disposed to extend the rule into the field of mere hypothetical conjecture, which, in the case like the present, must necessarily have been so uncertain and unreliable as to be purely conjectural, and utterly unsafe for either court or jury to adopt.”
See, also, the following cases: Hopper v. Empire City Subway Co., 79 N. Y. Supp. 907; Culbertson v. Metropolitan St. R. Co., 140 Mo. 35, 36 N. W. 834; Smith v. Minneapolis St. R. Co., 91 Minn. 239, 97 N. W. 881; Hammerberg v. Metropolitan Street R. Co., 62 Mo. App. 563; Koehler v. New York Steam Co., 75 N. Y. Supp. 597.
All the other errors discussed were before this court on the former appeal. There is substantially no difference in the facts disclosed at the two hearings, and the former opinion has therefore become the law of the case as to all questions there decided. For the error in the admission of testimony the judgment is reversed and a new trial ordered.
Mount, O. J., Hadley, Fullebton, Obow, and Dunbab, JJ., concur.
Hoot, J., having been of counsel, took no part.