110 Va. 240 | Va. | 1909
delivered the opinion of the court.
This case was before us upon a former occasion, and is reported in 106 Va. 1J6, 55 S. E. 580, 9 L. R. A. (U. S.) 894. The question there discussed was as to what constitutes a float-able stream, and after a careful examination of the authorities it was held that “While a stream may not be floatable in its usual and continuous condition, it is a floatable stream, and as such, subject to public use, if by increased precipitation at seasons, recurring periodically with reasonable certainty, the flow of water is sufficient to be substantially useful to the public for the transportation of the products of their fields and forests.”
The contention of the plaintiff in the court below was that Jackson river, the stream in question, was not a floatable -stream; but we held that, upon the facts stated in the declaration, it was a floatable, stream. The right of the plaintiff to recover being dependent upon his maintaining that the river in question was not a floatable stream, the demurrer to the declaration was sustained, and the cause remanded with leave to amend. That was done, a demurrer was again interposed, was overruled by the circuit court, the case tried before a jury, and
The declaration, as amended, consisted of five counts. The court struck out the third and fourth counts, and the first assignment of error is to the overruling of the demurrer to the first, second and fifth counts.
The first count, omitting its formal parts, avers that the said stream cannot be used by the public as a means of floating logs and timber profitably or practicably, for the reason that said stream will not, in its normal condition, wash logs down its channel, but will only wash logs down its channel when the water in said stream is increased so as to make it deep and swift enough for that purpose; and the plaintiff avers that when the increased precipitation of water in said stream occurs and makes said stream deep and swift enough to wash logs down the channel thereof, it cannot be used profitably or practicably for the purpose of washing logs down the channel of the same to mills or market, for the reason that the water in said stream, by reason of 'its being a rough, crooked, swift-running stream, runs with such force and so rapidly, and runs over the banks of the river along the said stream, that it piles the logs along the banks and in the channel of said stream, and carries logs frequently a great distance from said stream out into sluices and into the fields, and as often as the logs áre put back in the said stream the swift current throws the said logs out onto the banks, or piles them up in inaccessible places, and the water rushes on down the current of said stream and leaves the said logs strewn along the banks of the stream, or piled in the channel thereof, and it is impossible to keep said logs in said stream so they can be floated down same, and after the water passes on down said stream and leaves said logs as aforesaid, there is not sufficient water to wash the logs down the channel of said stream; and that when said stream becomes sufficiently high to wash logs down the channel thereof,'
For a general discussion of the subject, we shall content ■ourselves by referring to the former opinion in this case, from which it appears that to constitute a stream a public highway it must be of such a character as that it can be substantially useful to the public in transporting the products of the fields and forests; and we are of opinion that the facts recited, if established, plainly show that the stream in question is not capable of profitable use as a highway..
With reference to the fifth count, the only ground of demurrer assigned is “that it can only be held good as to the matter of leaving down the fences, which would be negligence in removing the logs”; which is a concession that it is, to that extent, a good count upon demurrer, and the presumption, of course, is that the trial court confined the proof upon it within proper bounds. As the defendant is bound by its assignment of grounds of demurrer, the objection to the fifth count, first presented in this court, that the suit is against joint trespassers, while this count declares against only one defendant and does not state which one, must also fall.
We are of opinion that the demurrer to the declaration was properly overruled.
The next error assigned is stated in the petition as follows: “The court, committed further error in admitting opinion evidence as to certain features of the case. It is well settled that expert, evidence is not proper where the jury can form a decision from the facts without assistance. Matters of common knowledge, which ordinary persons, without peculiar knowledge or skill, can comprehend are not subjects of expert evidence. Furthermore, the admission of evidence as to conclusion was plainly error.”
This assignment is so general as scarcely to comply with our rule upon the subject. A number of witnesses expressed opinions upon a variety of topics, several of them as to value about which there can be no doubt that the opinion of witnesses is generally admitted; some of them as to the cost of doing certain work in order to protect the banks of the stream against
But waiving the objection that the assignment of error is too general and singling out the most interesting and important of the objections urged upon this account, we will consider the admissibility of the evidence of Mr. ISTettleton, who testified as follows:
“Q. From your experience in floating logs, state whether J ackson rivel is a floatable stream ?
“To which question and any answer thereto the defendant by counsel objected on the ground that witness had not been shown to be an expert. Whereupon the court asked witness the following question:
“Q. Mr. Hettleton, do you regard yourself as an expert river man in the handling of lumber?
“A. I went on to Cowpasture river, and was there for three years floating logs myself, alongside as good a man as there is on earth to float logs; put in everything I had on earth in the venture.
“Q. By counsel for plaintiff: Tou say you are acquainted with Jackson river from the mouth of Back creek to mill of the defendant company? A. I am.
“Q. State whether or not in your opinion that stream is a floatable stream in its natural condition?
' “Whereupon the defendant again objected, but the court overruled said objection and permitted the said witness to answer the same, which he did as follows:
“A. I think not.
“And to this opinion of the court in overruling defendant’s objection to this testimony and admitting the same, the defendant, the Hot Springs Lumber and Manufacturing Company, Incorporated, excepted, and the bill of exception was signed, sealed and made a part of the record.”
■ It will be observed that the objection to the testimony was not that the subject was one upon which expert .testimony, was
But let it be conceded that the objection as taken opens up the whole subject, and that we may consider the propriety of expert testimony upon such a subject.
This subject is discussed with great discrimination and learning in the third volume of Wigmore on Evidence, chapter 65, beginning with section 1917. We regret that it is too extensive for quotation in an opinion. The conclusion of the author is, at section 1928, as fololws: “If we prefer to make the rules of evidence our tools rather than to become ourselves their helpless slaves, then we shall allow the witness to state freely all the results which he is qualified to reach, and only now and then, when he comes to matters as to which it is instantly clear that the jurors are, or can be, as fully equipped with the data, we shall exclude his inferences.”
In a note to section 440, Greenleaf on Evidence (15th ed.), it is said: “Whether a non-expert is qualified to give an opinion is for the judge. A farmer is qualified to give an opinion as to the effect of constructing a railroad through the farm of his neighbor, upon the convenience and expense of carrying it on.” (Citing Tucker v. Mass. Cent. R. Co., 118 Mass. 546.) “And generally opinions, like other testimony, are competent in the
In Porter v. Pequonnoc Company, 17 Conn. 249, where the plaintiff in an action for damages done his property on a watercourse by the defendant’s dam on the same stream above being carried away during a freshet, claimed that its being carried away resulted from its unreasonable height, and its defective materials and construction, and to prove this introduced a witness “having no peculiar skill in the mode of constructing dams, who testified that he had been acquainted with the stream in question for a great many years; that the waters in it rise very rapidly in times of freshet, and a great deal of water passes where the defendant’s' dam was; that said dam was built very high—higher than any dam he had ever known—keeping back a very large and deep pond of water; and that, in his opinion, under such circumstances, such a dam as the defendant’s was could not stand. It was held that the facts thus stated were unexceptionable evidence; and that the opinion of the witness, in connection with such facts, was admissible.”
That case involved the judgment of the witness upon a difficult problem—the strength of the dam, and the force of the water. He was well acquainted with the stream, but had no skill in the construction of dams; while in the case before us, the witness proved an intimate acquaintance with the stream, and a thorough knowledge of the uses to which it was sought to be applied.
In Glass Co. v. Lovell, 7 Cush. (Mass.) 321, Chief Justice Shaw says: “The principle upon which this evidence is admissible is clear and entirely just. In applying evidence which does not go directly to the fact in issue, but to facts from which the fact in issue is to be inferred, the jury have two duties to perform: First, ... to ascertain the truth of the fact to which the evidence goes, and thence to infer the truth of the
“Opinions,” it is said in 7 Am. & Eng. Ency. L. at p. 493, “are never received if all the facts can be ascertained and made intelligible to the jury, or if it is such as men in general are capable of comprehending and understanding. The ordinary affairs of life cannot be the subject of expert testimony.”
In Clifford v. Richardson, 18 Vt. 620, the case is well put: “When all the pertinent facts can be sufficiently detailed and described, and when the triers are supposed to be able to form correct conclusions without the aid of opinion or judgment from others, no exception to the rule is allowed. But facts are sometimes incapable of being presented with their proper force and significance to any but the observer himself. . . . Under these circumstances, the opinions of witnesses must of necessity be received.”
As was said by the Supreme Court of Pennsylvania in Graham v. Pennsylvania Co., 139 Pa. 149, 21 Atl. 151, 12 L. R. A. 293: “In those matters 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.”
In Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401, the court said: “The exception to the general rule that witnesses cannot give opinions, is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill, or learning, but includes the evidence of common observers, testifying to the result of their observation, made at the time, in regard to common appearances or facts, and a condition
Per contra, it has been held in numerous cases, and as to subjects about which the jury are supposed to have the same degree of knowledge as the witness. Opinion evidence is excluded as to the sufficiency of a fence to turn cattle, and like subjects within the range of everyday experience. Southern Railway Co. v. Mauzy, 98 Va. 692, 37 S. E. 285.
Oan it be doubted that the opinion of a witness who had made the floating of logs down mountain streams a part of the business of his life, who professed and, as far as the question under consideration is concerned, possessed intimate knowledge of the stream with reference to which he testified, before a jury composed of farmers and mechanics and men in the various avocations of life, of ordinary experience and of average intelligence, would be of distinct value in enabling them to arrive at a correct conclusion ? He might testify with respect to the stream, its volume of water, the height of its hanks, the rapidity of " its current, its tortuous course, the frequency of high water, the length of time which it was likely to continue; but unless he possessed unusual powers of description he could not present to the mind of the average juror a picture of Jackson river as it existed in his mind—could not convey to them, by a statement of facts, however exact, without the aid of his opinion, a correct and intelligent appreciation of the stream, so as to enablé them to decide the complex proposition: first, as to the power of the stream to float logs at all; and, second, as to whether or not it could be made so subservient and useful to the public for the transportation of products as to constitute a public highway and not a private stream.
We are of opinion that the evidence was properly admitted.
The remaining assignments of error all pertain to the correct
The case was tried and a verdict rendered on the 28th day of November, 1907. Upon the rendition of the verdict the defendant moved the court to set it aside upon numerous grounds, which need not be more specifically stated than that, except those already disposed of, they all depend upon the evidence.
Upon this motion the following order was entered: “The court not being advised of its judgment on motion to set aside the verdict doth take time to consider, and the following consent of parties is entered of record, to-wit: It is agreed that the plaintiff and defendant may present to the judge of this court such bills of exceptions.to the rulings of the court during this trial as either party may desire within sixty days from the 28th day of November, 1907, to be signed, sealed and made a part of the record with the same force and effect as if the said bills of exceptions were presented to the court and signed during the present term, November, 1907, and this consent is to be entered of record.” Which was accordingly done.
It will be observed that no judgment was rendered upon the verdict. The whole matter was, therefore, still within the breast of the court with full power, regardless of the consent of parties, to sign such bills of exceptions and enter such judgment as might be proper.
At the March term of court, on the 20th day of the month, the following order was entered: “This day came again the parties by their attorneys, and the court having maturely considered the motion of the defendant made at the last term of this court, to set aside the verdict of the jury and grant a new trial for reasons fully set out in the order made in this ease at the last term, is of opinion and doth decide that there is no legal ground upon which to set aside said verdict, doth over
There next appears the following memorandum: “Be it remembered that during the progress of this cause, and during the time allowed by law and by consent of parties entered of record as above, the defendant, the Hot Springs Lumber and Manufacturing Company, Incorporated, tendered its several bills of exceptions numbered respectively 1, A, B, C, D, E, E, C-, H, M, 2, which were, by the judge of this court, signed, sealed and made a part of the record, and which bills of exceptions are in the words and figures following, to-wit:”
These exceptions, down to Ho. 2, refer to the admission of testimony, and have already been considered. The object of the second bill of exceptions was to make a record of the evidence before the jury, and the trouble with respect to it is, that the transcript of the evidence is not properly identified by the court.
As was said in Blackwood Coal & Coke Co. v. James’ Admr., 107 Va. 655, 60 S. E. 90: “The evidence inserted must be, in some way, identified or earmarked by the judge under his own hand. Otherwise it is no part of the bill and cannot be considered by an appellate court. The making of a bill of exception is a judicial act, and cannot be delegated.”
In that case and in Battershall v. Roberts, 107 Va. 269, 58 S. E. 588, the views of this court are fully stated, and are conclusive of this case, unless the order entered by the court on the 20th of July, 1908, serves to remove the difficulty.
The plaintiff in error served notice upon the defendant in error that on that day it would move the circuit court “to enter an order nunc pro tunc in said cause certifying the true evidence introduced in said cause . .” In pursuance of that notice the parties appeared upon the day named, and over the
We aré of opinion that an exception was unnecessary, because the want of power in the court to enter such an order appears upon the face of the record.
The contention of plaintiff in error upon this point is that the courts have possessed and exercised the power to make nunc pro tunc entries in proper eases from the earliest times, wherever it was necessary to prevent injustice to suitors; that it may be done where a court has ordered a judgment, which the clerk has failed or neglected to enter in the record, even after the term at which it was rendered has passed. Citing 4 Am. St. Rep. 828, and Freeman on Judgments, sec. 56.
The trouble is that this argument, if sound, proves too much, and the contention, if sustained, would practically abrogate the statute upon the subject of bills of exception.
In Wallahan v. People, 40 Ill. 104, it is said: “An amendment of a bill of exceptions incorporating evidence alleged to have been omitted from the original bill of exceptions should not he allowed at a term subsequent to that at which the trial was had, unless there is something in the record to amend by.”
How in the case before us, there was nothing in the record by which an amendment could be made—no note or memorandum of evidence introduced; for to say that there was a memorandum of the evidence introduced would be to assume the existence of the very fact which is to be established—that is to say, that there is a memorandum which correctly states the evidence introduced before the jury.
In Tracy’s Admx. v. Carver Coal Co., 57 W. Va. 587, 50 S. E. 825, it was held that where a skeleton bill of exceptions had been prepared, as in our case, the judge of the court, on motion of the exceptor, could not, two years afterwards, undertake to certify the evidence and complete a bill of exceptions,
There was no clerical misprision here, no failure upon the part of the clerk in the discharge of his duty; but the trouble arises out of the fact that, by some oversight, which may happen to the most cautious and discreet, there was no identification of the evidence, the doing of which is not a clerical but a judicial duty.
We are of opinion that the evidence is not properly before us, and we are precluded from a consideration of the instructions and the judgment refusing to set aside the verdict as contrary to the evidence.
Upon the whole case, we are of opinion that the judgment of the circuit court should be affirmed.
Affirmed.
