62 Mich. 220 | Mich. | 1886
Lead Opinion
Plaintiff sued for personal injuries caused by the upsetting of a cutter while crossing defendant’s track, the cause of the accident alleged being the continued existence of a hard and slippery ridge left by defendant by the side of its track, and making the crossing-dangerous. The court below directed a- verdict for the-defendant on account of contributory negligence. Defendant now insists that, whether or not this defense is clearly made out, there is enough in the record to support the ruling, because no negligence appears in defendant, and because-the injury suffered by plaintiff, if any, was not the same-alleged in the declaration.
Plaintiff alleges a good many errors in- the reception and’ rejection of testimony, in addition to- the- vital question whether the case should have been taken from the jury.-. We do not think it worth while to- dwell! on all of these-points, although some of them are nnd'onbtedly well taken.
The claim of plaintiff is that upon the twenty-ninth of February, 1884, not far from 9 o’clock in the morning, she, with her husband, was going in a sleigh down Fulton street, towards the railway station, and, at the junction of Park and Monroe streets, had to cross the track, which there turned upon Monroe street, with a switch at the curve. The horse was a steady one, going previously at a walk. She claims that the snow which had fallen along through the season had been thrown up beside the track, and trampled or packed down, so as to leave a depression at the track of from six to ten inches or more, with a sharp slope downward.
Finding it necessary to cross the track, her husband turned the horse so as to cross as nearly as he could at right angles, but the sleigh, in making the descent, tipped over, to the left, and threw her out, her husband being thrown upon her, and her left arm was dislocated. She claims that in consequence of the- injury the shoulder and arm have been affected painfully-ever since, and more or less weakened.
Defendant claimed that there was no negligent disposition of the snow; that the accident came from careless driving over the track, and that the alleged injuries were fictitious and the proof variant.
If the testimony of the plaintiff and her husband, and several other witnesses, on the subject, was true, the defendant’s negligence was made out, and came within Bowen v. Detroit City Ry. Co., 54 Mich. 496, and Wallace v. Same, 58 Id. 231, cited on the argument. The court below did not allow any testimony of the condition of the road away from the immediate vicinity of the accident. As the testimony, if believed, indicated a condition of things of some
It, was the duty of defendant to see that nothing was allowed to make crossing dangerous at that point, where otherwise both Fulton and Park streets would have been rendei'ed perilous to persons on lawrful business. There was sufficient proof of fault, and we do not gather from the record that the court below thought otherwise. But we think it was error to refuse to allow persons familiar with driving to give their opinion, as eye-witnesses, concerning the safety of the crossing.
No amount of description can enable a jury to see the place ás the witnesses'saw it; and, while witnesses must describe the place as well as they can, it is always competent for those who are familiar with the highways, and their use, to give their impressions received at the time concerning safety or convenience of passage, and other conditions of an analogous nature. They are not strictly scientific questions, •and come within familiar principles : Evans v. People, 12 Mich. 27; Beaubien v. Cicotte, Id. 459; Detroit & M. R. R. Co. v. Van Steinburg, 17 Id. 99; Underwood v. Waldron, 33 Id. 232; Elliott v. Van Buren, Id. 49, and.note; Pettibone v. Smith, 37 Id. 579; Huizega v. Cutler & S. L. Co., 51 Id. 272.
Ve do not think there is any force in the claim that the testimony of injury and suffering is fatally variant from the declaration. The injury is sufficiently described as a dislocation of the shoulder, caused by the accident, and also consequent suffering. That much, at least, is distinctly enough alleged. The question whether the dislocation threw the head of the bone into the armpit, or under the shoulder-blade or collar-bone, or elsewhere, was in itself of no sort of consequence, and the conflicting testimony of the medical witnesses shows that it could not be determined except by the medical observer before it was set, and he did not re
There was testimony of her physicians corroborating her story by their own observations of her personal appearance, and testimony from all the physicians that observations made with the aid of personal explanations must always be more satisfactory than those made without them, if they are consistent with appearances. There 'was medical testimony, and plaintiff’s own testimony, which corresponded sufficiently with the minute statements of the declaration concerning the specific injuries and consequences to authorize the jury to find them established, and the court could not have selected particular medical witnesses as most worthy of credit, had it seen fit to do so, which we do not find it did.
But we do not think a declaration in such a case as this should be held to any technicality of construction. The injury which is visible and open to common observation may be described and tested easily, and should be described reasonably. But the internal and invisible ailments, which are only inferred from scientific deduction, and on which there is always room for some difference of opinion, cannot be held fo so close a rule, and there is no reason why they should be. There is no danger that the defendant in such a case as this will be taken by surprise, for any permanent or temporary mischief likely to arise from injuries such as were originally received can be understood and anticipated on one side as well as on both sides, who seem to have had no hesitation concerning their respective theories, although they were not in harmony.
In our opinion, the plaintiff should have been allowed to show, by her medical witnesses, who were present, the particulars in which, in their opinion, the defendant’s medical witnesses failed to make proper or full examinations. This was itself chiefly a medical question, and inferences drawn, from impei’fect examinations must be of inferior value. This was the more important because those witnesses had taken the
No opinion can prevail over actual facts. The opinions of experts are admissible concerning the scientific probability of certain consequences from particular facts, and the scientific probability of their concurrence. But neither science-nor witnesses can be held infallible; and when facts are-shown to the satisfaction of a jury to exist, they must act upon them. It does not follow, because particular physical ailments are not established, that there is no pain, or that it does not indicate something else, known or unknown.
We do not think there was any such proof of contributory negligence as to authorize the court to take the- case from the jury. The parties were in the use of the highway upon a proper errand, and unless the crossing was in such a condition as to make it reckless to attempt to drive over it,, there was no wrong in doing so. It was at a place where an impracticable crossing would have been an unlawful obstruction of a public way, and there is abundant evidence to show that it was crossed habitually, although requiring some care in doing it. Plaintiff’s husband is shown, by several eyewitnesses, to have crossed it as directly as seemed practicar ble, and unless he was shown to have done so in a careless way he was not at fault. All of plaintiff’s testimony showed at least ordinary care, and the question was therefore one for the jury.
The judgment must be reversed, with costs, and a new trial granted.
Concurrence Opinion
In this case I fully concur in the opinion filed by the Chief Justice, except in relation to the admissibility-of
The reception of such testimony would, in my opinion, open up a field of boundless speculation, which would tend to confuse and obscure rather than to throw light to the jury upon the question of the true condition of the street. It would also afford occasion and opportunity for perjury, limited only by the character and number of the witnesses who might be interrogated upon the subject.
The admission of the evidence of the opinions of witnesses is always attended with danger, and is not tolerated by the law except in cases when such testimony is absolutely necessary in order .to ascertain the truth of a fact to be determined. The truth or falsity of the opinion is necessarily concealed in the breast of the witness, and his perjury cannot be detected or punished.
This case in itself demonstrates the unreliability, and the dangerous character, of expert evidence. Here we have physicians who ought to be and are men of intelligence, and of good standing as citizens in the community where they live, radically differing upon the vital point of the case. Several witnesses sworn on the behalf of the plaintiff strenuously maintain, under oath, that the woman is severely and permanently injured, and a half dozen others hold, with equal pertinacity, that she is not hurt at all, but is shamming.
It is difficult to .perceive how the jury was enlightened by the learned and dogmatic opinions of these men, couched often in language not easily understood by plain people, and emphatically disagreeing in'almost every particular.
Yet this class of evidence is admissible because it is upon a scientific subject, with which these physicians are familiar, and supposed to have a special knowledge and experience not within the reach of the ordinary citizen serving as a juror.
There is no reason for extending the rule as desired here. There is nothing about the track of this railway, the condition of -the .-street, or the disposition of the ice and snow
The cases in this State cited by the Chief Justice, in support of the proposition that this evidence of opinion as ’ to ■the dangerous character of this crossing is admissible, do-not seem applicable, in my mind.
Evans v. People, 12 Mich. 27, simply held that a person: not a physician could give his opinion that there was no. sickness at a certain time within six' miles of a certain place;
Beaubien v. Cicotte, 12 Mich. 459, holds that ordinary-persons may give opinions as to the mental capacity of another.
In Detroit & M. R. R. Co. v. Van Steinburg it was decided that any one possessing knowledge’ of time and distance' might give an opinion concerning the speed of a train- of cars passing him.
In Underwood v. Waldron, 33 Mich. 232, it was d'eelared. that in a case of injury to the foundation-walls of a building by the disintegration of mortar caused by water, and when the question to be decided was whether such water- came-from inside or outside of the walls, a witness might give his- ■ opinion upon the matter, if, in addition to his personal, view of the disintegrated plaster of the wall, he saw other facts-indicating that the water came from any particular direction, which facts and indications he must state to the jury; But if he only saw the plaster of the wall disintegrated and destroyed by water, with nothing but this to indicate whence the water came, he could give no opinion of its source.
In the very extensive note to the case of Elliott v. Van Buren, 33 Mich. (Ann. Ed.) 49, where a large number of cases are cited, bearing upon many questions where opinions-have been admitted by this and other courts, there is not
In Pettibone v. Smith, 37 Mich. 579, a witness was allowed to testify as to the comparative flow of water in a stream, with which he was acquainted, in different years, and the supervisor was permitted to state the effect of dry seasons upon- such streams in his township.
The case nearest in point is that of Huizega v. Cutler & S. L. Co., 51 Mich. 272. The following questions were there sustained:
“ Q. State whether, in your opinion, the gearing that turns the slab-rollers, in an uncovered condition would be dangerous. Q. What would be the effect of a person coming in contact, or his clothing coming in contact, with that gearing, — those cogwheels?”'
It appears from the opinion that the objection was that of immateriality. Sherwood, J., in his opinion, says:
“We can see no objections to those questions. Certainly the dangerous character of the machinery was one of the questions involved in the case, and the opinion of competent witnesses was admissible to show it, as well as what consequences might be expected if a person were to come in contact with it.”
It does not appear from this opinion that the competency of this evidence was raised before the court, and, if it was,, the opinion does not declare upon what principle it was. admitted.
It certainly could not come within the principle contended for in the case at bar. This machinery, and its character, and its. operation, covered or uncovered, was not a matter of common observation or knowledge, open to all who witnessed it, as was the condition and character of this railway track and its approaches.
Indeed, the plaintiff recovered upon the express ground that he was ignorant of the danger, and not warned of it,, when he was working in the mill, and in plain sight of it.' every hour of the day. It was not, therefore, a matter of
It seems to me that it must have been admitted in the court below and sustained here upon the theory that it was a matter of expert knowledge and observation.
An examination of the record of the ease confirms me in this opinion. One of the witnesses permitted to answer these questions was a head sawyer of seven years’ experience with such machinery, and the two others were, one a sawyer, and the other a mill carpenter, working in this identical mill, and having more than ordinary knowledge of the machinery and its use. The brief of the appellee filed in the case in this Court justifies the reception of this testimony on the ground that it was expert evidence.
As expert testimony it was admissible. But I do not think that persons not experts would have been permitted to answer these questions, nor, in the case of this machinery, could an ordinary jury, not familiar with mills or mill machinery, gather, from a mere description of it, the knowledge necessary to determine its character as to being dangerous in the condition it was. This is not, however, the case with snow or ice piled along a railway track, constantly open to the observation of everybody.
If this kind of evidence is declared competent, we shall have, no doubt, as many witnesses upon a side as the court below will permit, swearing, one set that the crossing was dangerous, and the other that it was perfectly safe. How this can help the jury passes my comprehension ; and if any witness commits perjury, as before said, it cannot be detected or punished, nor is there any criterion within this kind of testimony itself to determine the reliability or worth of this or that man’s belief about the safety of the crossing.
It opens the door to opportunities for fraud, and to uncertainties in legal investigation, which I, for one, cannot thus encourage.
■ If upon the next trial of this cáse a witness for the plaintiff should swear that the ridges of snow were five or ten feet high, or a witness for the defendant should testify that
Therefore such evidence is dangerous, and liable to defeat the end of justice.
It is a general rule that witnesses must give evidence of facts, and not of opinions. The exceptions to this rule do not include, as I can find, such opinions as were offered and rejected in the court below. In Stephen’s Digest of the Law of Evidence, which notes the exceptions to the general rule, and cites a large number of cases illustrating the variety of such exceptions, there is no case reported where the dangerous character of such a place as this crossing has been permitted to be established by the opinions of eye-witnesses, nor is any case cited bearing any analogy to such ruling.
In some of the New England states the question has arisen in the courts whether the opinions of eye-witnesses were competent as evidence of the safety of highways and bridges, or as to the dangerous character of certain places or defects in the roads and streets. Such inquiries are analogous to, and should be governed by, the same principles as the inquiry into the character of the crossing in this case.
I have been able to find but one case where the opinion of the witness was allowed to be given in evidence, and in that case it was permitted upon the express finding that the answers were statements of fact, and not opinions.
In an action against a town for injuries received in consequence of a defect in a highway, witnesses were asked the condition of the road, and answered :
“ There was a bad place at the side of the road.” “ The condition of it was baa.” “ At the mouth of the culvert it was a steep, — right down; a culvert that I thought a dangerous place.”
“ But the court do not so understand the testimony. The witnesses are not asked their opinion as to the'sufficiency or insufficieney of the road, bnt the inquiry was as to the actual condition of the road in point of fact, and as to what the ' witnesses knew, not what was their opinion on the subject. ¡ The answers of the witnesses described the actual condition of the road as within their personal knowledge, and are not expressions of opinion.” Lund v. Inhabitants of Tyngsborough, 9 Cush. 36.
In the case of Crane v. Town of Northfield, 33 Vt. 124, the question was as to the sufficiency of a bridge or culvert while covered with dirt. A witness, who was present at the .time of the accident, was not allowed to make the statement that if the dirt had not been washed from the bridge the-injury would not have happened. It was claimed that as he was present when the accident happened, and examined the-bridge, he was entitled to give his opinion. But the court, after citing the general rule, and giving the exceptions and the reasons therefor, say :
i “ The substance of the witness’ opinion that was asked for was whether it (the bridge) was' then safe and sufficient. ; This was the very question that the jury was to try and! 'decide, and it does not appear to us that there could be any 'difficulty in having the condition of the culvert so described to the jury by the witness that they would be just as capable of exercising their judgments, and forming a correct, opinion, as the witness himself.”
The following cases hold the same doctrine: Lester v. Pittsford, 7 Vt. 158; Patterson v. Colebrook, 29 N. H. 94; Hutchinson v. Inhabitants of Methuen, 1 Allen, 33.
See, also, Kelley v. Fond du Lac, 31 Wis. 179; Smead v. L. S. & M. S. Ry. Co., 58 Mich. 202-3, and authorities-there cited by Sherwood, J.
I believe it is better and safer to hold in accordance with-the authorities last cited. The rule that the facts must be
The superior court judge was right in excluding these ■ offered opinions, but in other respects, as noted by the Chief Justice, I think he was in error, and therefore join in the reversal of the judgment below.
See Maynard v. Vinton, 59 Mich. 154.
See Smith v. Sherwood Township, 62 Mich. 160 (head-note 4).
