Keyes-Marshall Bros. Livery Co. v. St. Louis & Hannibal Railway Co., 105 Mo. App. 556

Keyes-Marshall Bros. Livery Co. v. St. Louis & Hannibal Railway Co.

105 Mo. App. 556 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above.)

—1. The toleration of the mere expressions of opinions of skilled witnesses as lawful proof is a conspicuous exception to the fundamental law of evidence that the triers of controversies should form their conclusions from facts detailed by witnesses, and not from mere opinion of any witness, and the admission of this class of testimony should be guarded rigidly within its proper limits, and the conditions established by law under which such testimony is made admissible should be scrupulously regarded. In the employment of such proof, the rule is well settled that such witnesses should not be permitted to assume the province or duties of the triers of fact by expression of individual opinions upon the issues of fact on trial. As expressed by one writer upon the subject of expert testimony, an expert should not be interrogated in such manner as to cover the very question to be submitted to the jury (Rogers, p. 61): or as fancifully described in a case cited by such author, “A question should not be so framed as to permit the witness to roam through the evidence for himself, and gather the facts as he may consider them to be proved, and then state his conclm sions concerning them.” Dolz v. Morris, 17 N. Y. Sup. Court (10 Hun) 202. Another, a criminal ease, sets forth the doctrine thus: “The superior knowledge of the expert is frequently required in the conduct of judicial examination of subjects beyond the reach of common observation. But; this evidence has its restrictions, and must never be allowed to invade the rightful and exclusive province of the jury in drawing their own conclusions from the testimony of the credibility of which they alone must judge. It is their duty to hear and pass upon the evidence and the expert’s opinion is admitted only to aid in performing that duty. It is obviously improper for any' one, expert or non-expert, *561to express an opinion, warranted only by assuming the truthfulness and accuracy of what witnesses have testified. Such evidence is competent, only when founded on facts within the personal knowledge and observation of the expert, or upon the hypothesis of the finding of the jury.” State v. Bowman, 78 N. C. 509.

In this State, in criminal and civil proceedings alike, this view has been adopted. State v. Palmer, 161 Mo. 152; Tingley v. Cowgill, 48 Mo. 291; Graney v. Railway, 157 Mo. 666. And authorities from other jurisdictions abound, additional to those quoted above, exhibiting varied situations and facts. Lawson Expert and Opinion Evidence, p. 173; Connelly v. Manhattan Railway Co., N. Y. Sup. 176; Briggs v. Railroad, 52 Minn. 36; Page v. Mayor, etc. 10 N. Y. Sup. 826; Fairchild v. Bascom, 35 Vt. 399; McGuire v. Railroad, 51 N. Y. Sup. 1075.

Nor is the answer of the respondent satisfactory, that as there was no conflict in the testimony, the error, if any, was harmless; under the practice now prevailing all testimony, not of a doctumentary character, where issues are joined, must be submitted to the jury, and while in the case cited and relied upon, the court under the peculiar circumstances presented, held that any error in permitting the medical expert to express an opinion as to the mental condition of the accused at the time of the homicide based on the evidence as he heard it, and as it was stated to him was not fatal, yet the court further declared the better practice to be, where the facts are controverted to address to, the expert hypothetical questions, based upon the facts claimed to have been proven by the evidence, so that the jury might know the facts on which the expert’s judgment was founded, and thus determine independently, as in its province, whether such facts were proven or not; otherwise the expert must depend on *562his memory and predicate his opinion on his recollection of the facts, thus becoming himself trier of the facts in the place of the jury. State v. Privitt, 175 Mo. 207. The method of examination of the expert was in violation of the above well-founded rule, and can not be sanctioned.

2. The liability of a railroad corporation, as shipper of animate freight, is the same as that of a common carrier respecting other classes of property received for transportation, excepting as to injuries resulting from the natural and inherent propensities of the animals themselves. Hutchinson, Carriers (3 Ed.), sec. 222; Ray, Negligence of Imposed Duties, p. 253. Under the proof made to the effect that the horses forming the team were in good physical and serviceable condition when tendered to and received by defendant for shipment, that in course of transportation a casualty ensued, by which the car containing them was overturned and thrown down an embankment, that when rescued from the reversed car they bore marks of the accident through which they had passed, and subsequently they were, and continued in unserviceable shape, timid, unmanageable, difficult to handle and consequently reduced in value, manifestly established a prima facie case properly for the jury. Pacific Express Co. v. Emerson, 101 Mo. App. 62 (74 S. W. 32); Hance v. Express Co., 66 Mo. App. 486; Cash v. Railroad, 81 Mo. App. 109.

The judgment is reversed and the cause remanded.

Bland, P. J., and Goode, J., concur.