125 Mo. App. 239 | Mo. Ct. App. | 1907
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Judgment was for plaintiff in the sum of twenty-five hundred dollars and defendant appealed.
In the afternoon of January 11, 1902, plaintiff, accompanied by her daughter, became a passenger on a west-bound cable train operated by defendant on the Twelfth street line of its street railway system in Kan
The nature and extent of plaintiff’s, injuries and the results produced by them were made the subject of a sharp contest. Plaintiff claimed that she sustained severe injuries to her head and spine, that two ribs were broken, and that she suffered from- a severe displacement of the uterus, all in consequence of the fall caused by defendant’s negligence. Her evidence strongly supported all of these claims, but defendant- insists that the learned trial judge erred in permitting witnesses who knew plaintiff intimately, both before and after her injury, to testify concerning changes in her
“Q. How did your mother appear after she was thrown from this car as you have described, with reference to getting about; how did she walk? A. She did not get around so well as she had before; she limped on account of her side hurting her. Q. Now, prior to the time your mother was thrown from this car as you have described, how was she as to being an active person and otherwise? A. Why she was very active for a woman of her age. (Plaintiff was fifty-four years of age.) Q. And how did she appear to be with reference to activity after she was thrown from the car as you have described? A. Well, it was hard for her to get around. Q. Now, have you lived-with your mother ever since this time? A. Yes, sir. Q. How has she appeared with reference to activity ever since she got out of the house after that three months? A. Well, she does not get around as well as she did before she was hurt. Q. I will get you to state whether or not since that time, after the three months that you say she was confined to her house, she has given forth any expression of pain? A. Yes, sir. Q. Now, at the time when she gave these expressions I will get you to state whether or not she appeared to be suffering? A. Yes, sir.”
Another witness testified:
“Q. How did she look; what was her appearance? A. Well, she was in great pain; her head and .her side — Q. How did she appear, Mrs. Fitzgerald; did she appear to be suffering or not? ■ A. Yes, sir; she seemed to be suffering awful, the back of her head and her side. Q. How did she get around as compared to how she did before? A. Always kind of holding her side and Avalking like she was in pain or seemed disabled. Q. Now did she after this time that you saw her in bed, do her own housework as she did before or not? A. No, sir. Q. I will get you to state beween the time
And a third witness testified:
“Q. The objection is to your comparing it. Please don’t compare it. Just tell the jury how she is now every day as to activity without any comparison. A. She is not active at all. She can hardly get off and on the car, hardly go upstairs without holding her side.”
Defendant, in its brief, thus states the ground of its objection to this class of evidence: “The action of the trial court in permitting witnesses for the plaintiff to testify as to the ‘appearance’ of plaintiff, before and after the injury; as to whether she could ‘get around as well after as before the injury;’ as to whether she suffered physical pain or not, and all such questions, was error. This was a mere conclusion or opinion of the witness and was inadmissible in that form and for that reason. ‘If the opinion sought is based on no evidence it should be rejected; and if properly founded on evidence that evidence ought to be laid before the jury, the law presuming that they are equally as capable to draw therefrom the correct inferences.’ ” Authorities cited in support of this contention are: Reid v. Insurance Co., 58 Mo. 421; Hurt v. Railway, 94 Mo. l. c. 261; King v. Railway, 98 Mo. 235; Best on Evidence (Chamberlane), 497.
It will be observed the witnesses were not ashed to state, nor did they state, their conclusions or opinions respecting the cause of the alterations in the physical appearance which they observed in plaintiff after her injury, nor of the pain and suffering they say was apparent, nor of the great impairment to her activity, and the question for our determination is: Are these statements of apparent physical deterioration and impairment given by non-expert witnesses to be regarded as mere expressions of opinion and, therefore, inadmis
The general rule applicable to non-expert witnesses is that they must state facts and not give their opinions, since the jury, with the facts before them, are as well able to draw conclusions as are the witnesses themselves, and it is considered to be inimical to a just and impartial solution of controverted issues to permit such witnesses to give their own coloring to the facts about which they are called to testify. Declaratory of the rule are the authorities cited by defendant to which we have referred, but by no means are they decisive of the question under consideration. There are well-recognized exceptions to this general rule which are born of necessity. A party litigant would be deprived of a most important right, and in many instances, would suffer the infliction of a great injustice should the rules of evidence be so restrictively applied that he could not bring the real facts of his case to the triers of fact. To prevent such injustice, one of the exceptions to the general rule against non-expert opinion evidence is that where the conclusion of the witness falls in the class termed “conclusions of fact,” it no longer is to be treated as a matter of opinion, but as a fact. One of the rules to be applied in making the classification is that where the appearance observed by the witness, about which he is asked, unquestionably could produce but one impression on all reasonable minds, the opinion of the witness may be given as a short hand rendering of the' facts, though the facts constituting the appearance may be fully and accurately depicted to the jury. In such cases, as well as -in those of another class to which reference will be made, the safeguard against imposition is in the right of cross-examination, relative to the facts on which the opinion is based. [Council v. Railroad, 123 Mo. App. 432, 100 S. W. 57.] Another test by which the admissibility of non-expert opinion evidence
Belonging to the class of non-admissible evidence was the question discussed, in the casé of King v. Railway, supra. There the witness was asked if a certain railroad crossing was “dangerous for a stranger crossing there.” Clearly improper, for whether the danger the witness might have thought existed lay in the fact •that there was no filling between the rails, or that the planks contained protruding spikes, or that holes were there, or that there were no approaches, the fact itself on which the conclusion was founded could be accurately depicted to the jury, and the conclusion could be a subject of legitimate difference among reasonable minds. This being true, it was for the jury, uninfluenced by the opinion of the witness, to say whether the particular defect or defects, if existent, constituted a source of danger to a strange traveler.
Illustrative of the rules under which opinions may be given, many examples are to be found in the reported cases. It has been held proper for a witness to state that certain blood stains on a garment indicated the direction from which a murderous blow was struck (Commonwealth v. Sturtivant, 117 Mass. 122); that certain
Opinions may be given by non-expert "witnesses as to state of health, hearing or sight, or the ability of another to use his arms or legs naturally and whether such other is apparently suffering pain or is in possession of his or her mental faculties or is intoxicated, excited, calm, angry or the like. [Railway v. Fishman, 169 Ill. 196; Heman v. O’Brien, 81 Mo. App. l. c. 641; Sampson v. Railroad, 57 Mo. App. 308; State v. Harris, 150 Mo. l. c. 61; Railroad v. McLendon, 63 Ala. 266; Peterson v. Seattle, etc., Co., 23 Wash. 615; Railway v. Van Vleck, 143 Ill. 480; Heddles v. Chicago, etc., 77 Wis. 228; Jefferson v. Life Assn., 69 Mo. App. 135.]
In each of these instances it was impossible for the multitudinous details of the appearance in question to he portrayed to the jury by human testimony and because the jury could not have before them the basic facts, the opinion of the witness was received as the best evidence obtainable. The testimony under consideration clearly falls within the latter class. How can a person relate or even be conscious of all of the indicia of pain and suffering in another? Or, how can he de
Further complaint is made of the action of the trial court in excluding certain statements appearing in a deposition offered in evidence by defendant. The witness testified that he was standing on the platform of the rear car and observed plaintiff during the occurrence in question: “Q. Were you looking right at this lady? A. When she got up we had started and she got up and I loondered whether she was going to try to get off the ear imthout calling to the conckictor to stop. . . . Q. You did not see whether she had anything in her hands or not? A. No, I did not, she had a cloak or shawl on, I don’t remember which. Q. If you had been watching her you could have seen if she had bundles or packages? A. I did not notice any bundles or packages of any kind. Q. I say if you had been watching her you could have seen them? A. I probably might have seen them. Q. How is it that you remember the exact time she got out of her seat? A. Because the car had started and she raised up to go out after we had started. Q. What called your attention to it? A. She called my attention. I wondered whether she was going to try to get out of the ear while
We give sanction to this as a correct exposition of a serviceable principle, but do not believe it should be applied in instances like that under consideration. To permit a witness to support his assertions of fact with the narration of the unuttered thoughts which accompanied his observation of the occurrence in question, certainly would open the door to harmful and unjust consequences. The party against whom the testimony was given would have no means of combating the state
Finally, it is urged that the instruction on the measure of damages given at the request of plaintiff enlarged the scope of the issues presented by the allegations of the petition. This point we find to be so obviously without merit that its discussion would serve no useful purpose.
The judgment is affirmed. ,