101 Cal. 585 | Cal. | 1894
The plaintiffs are husband and wife, and on the 20th of May, 1890, took passage with the defendant, to be carried over its railroad from Visalia to the city of Tulare. At about a mile before reaching Tulare there was a washout in the track of the defendant, and some passengers, including the plaintiffs, were transferred from the car in which they had been carried to a hand-car, by which the defendant undertook to carry them to Tulare. Mrs. Healy took her seat upon the forward end of the hand-car, with her feet hanging
1. One Ashmead was a passenger on the defendant’s road upon the same trip, and was sitting on the rear of the hand-car at the time it was thrown from the track. At the trial his deposition was read in evidence by the plaintiffs, in which, after describing the accident, he was asked: “ Under the circumstances, was it possible for an ordinary person, sitting in the position Mrs. Healy was sitting in, to stand the force of the jars and still retain her seat upon the car?” To this question the defendant objected, upon the ground that it was irrelevant, incompetent, and immaterial, and merely called for the opinion of the witness. The objection was overruled, and the defendant excepted.
This question does not fall within the rule which excludes the opinion of a witness. The general rule is that the testimony of a witness shall be limited to the facts of which he has a personal knowledge, and that he shall not give his individual opinion thereon; but in many instances the opinion of a witness may be received in connection with his statement of the facts upon which it is based. The border line between fact and opinion is often very indistinct, and the statement of a fact is frequently only an opinion of the witness. Impressions or sensations caused by external objects are not susceptible of exact reproduction or description in words, nor do they affect every individual alike, and the judgment or opinion of the witnesses by whom they have been experienced is the only mode by which they can be presented to a jury. The question asked of the witness in the present case did not call for an opinion from him depending upon facts which he had subsequently learned, but he was asked to describe the effect
The position of the plaintiff on the car, as well as his own position thereon, the jumping of the car from the track, the effect produced upon himself, the sensation which he experienced thereby, were all facts which it was competent to show by his testimony, in order that the jury might get as clear an idea as possible of the circumstances under which the accident had occurred. The strength or force of this concussion was also a fact which it was proper to bring before the jury, and as it was not capable of exact measurement by any recognized standard, it was competent for the witness to state its strength or force according to the opinion or judgment which he formed at the time that he felt it. His judgment or opinion of its effect upon an ordinary person would be the most efficient mode of enabling the jury to fully appreciate it, and to give to it its proper consideration in determining its influence in producing the injury. Such testimony is competent upon the same principle that permits evidence showing the strength or force of a blow, the distance at which a sound can he heard, or the direction from which it comes, the speed .of a horse, the degree of cold or heat, or of light or darkness. In any such instance a witness who had a personal experience or knowledge of the sensation is competent to testify, although his answer is only his opinion of the matter. The accuracy or strength of his testimony is to be tested by cross-examination. These observations apply also to the testimony of the witness that he thought that the car was too narrow for the track, and also to the testimony of another witness, as to the appearance of the plaintiff immediately after the accident. (Eyerman v. Sheehan, 52 Mo. 222; Kelley v. Richardson, 69 Mich. 430; Wharton on Evidence, 512; Bogers on Expert Testimony, sec. 4.)
2. Dr. H. L. Pace, a witness on behalf of the plaintiffs, having testified that an injury to the skull or to the
It is now urged that this question was improper, because it was not adapted to the facts that had been shown in the case, and that it was not based upon a hypothesis consistent with those facts. No objection of this character was made at the trial. If it had been then made the form of the question could have been varied so as to obviate the objection.
It is, moreover, urged that it was erroneous to permit the witness to refer to “ cases on record,” as that in effect is permitting the introduction of medical books to the jury. A comparison of the question put to the witness with his answer will show, however, that the objection made by the defendant does not reach this point, even if it were tenable. The witness was asked as an expert what would be likely to be the result of certain injuries to the brow or forehead. This question sought to obtain from him his own opinion of these results, and the fact that he was called as an expert as
3. Mrs. Healy testified at the trial that prior to the time of the accident she was able to do all of her household work, and that since the accident occurred she had not been able to do this work. The defendant objected to this testimony upon the ground that it was irrelevant, incompetent, and immaterial, and excepted to the ruling of the court in admitting it. The testimony was, however, competent for the purpose of showing the extent of the injury she had sustained, and it was also material for that purpose, and relevant to the issues in the case. There was no evidence presented of any special damage resulting from this particular effect of the injury, and indeed no evidence was introduced at the trial of the amount of damage that had been sustained; nor did the plaintiffs seek to recover damages for any loss of services. If the defendant had made a special objection to this testimony, that the plaintiffs could not recover in this action for any loss of service caused by the injury to the wife, it could have been made apparent to the jury that the plaintiffs were seeking only to show the extent and character of the physical injury which she had sustained. The decision in Tell v. Gibson, 66 Cal. 247, was made upon the demurrer to the complaint, but in the present case the demurrer was insufficient to present this objection, as it failed to “distinctly specify” this ground. A demurrer to a complaint upon the ground that several causes of action have been improperly united should specify the several causes of action. It is not sufficient to merely state that several causes of action have been improperly united in the complaint, without at the same time pointing out those to which the demurrer is intended to refer. Moreover, in Tell v. Gibson, 66 Cal. 247, the loss of the wife’s services to the husband was distinctly made one of the elements of damage upon which the judgment was sought,
Certain other exceptions were taken to the rulings of the court upon the admission of evidence, but none of these rulings are such as to merit particular notice. The court did not err in refusing the instructions to the jury asked by the defendant, and the instructions to which the defendant has taken objection in its brief were correct. The damage allowed by the jury cannot be deemed excessive, nor can their verdict upon the insufficiency of the evidence be reviewed.
The judgment and order denying a new trial are affirmed.
Garoutte, J., Paterson, J., De Haven, J., and Beatty, C. J., concurred.
Rehearing denied.