83 P. 562 | Utah | 1905
1. This action was brought by the plaintiff against the defendant to recover damages for an injury sustained by her through a defective sidewalk while she was riding a bicycle. The defect, as described on behalf of plaintiff, was an irrigating ditch across the walk, eight to eighteen inches deep, fifteen to eighteen inches wide, and mostly filled with leaves. The ditch, as described on behalf of the defendant, was saueer-like in its construction, two and one-half inches deep, and twelve to fifteen inches wide. The jury rendered a verdict in favor of plaintiff, and the defendant appeals. 2. The assigned errorsrelate only to the admission of evidence. At the conclusion of the defendant’s case the plaintiff in rebuttal called a witness, and upon qualifying him as an experienced bicycle rider, and showing his experience in riding over depressions and excavations with a bicycle, asked him what difficulty there would be for a person, such as plaintiff, a lady weighing 132 pounds, in riding a bicycle over a depression two and one-half inches deep, where the edges sloped down dish fashion. To this an objection was made, because it was not rebuttal, was incompetent, and immaterial. Thereupon counsel for plaintiff stated the purpose of the proffered testimony to be to rebut the probability of plaintiff falling off in riding over a saucer-like depression but two and one-half inches deep, and as tending to show that the ditch was deeper. The objection being overruled, the witness answered that it was not very much of a thing, if not going fast; that it was not bad; that a person could ride over it in pretty fair shape by going between four and five miles an hour. The ruling is erroneous. The testimony is claimed admissible on the theory of opinion evidence. The claim is unfounded, because the subject-matter of inquiry was not of such character
Again, the question could not be answered without embracing in the answer, and as was necessarily implied, though not expressed, in it, the opinion of the witness as to the degree of care on the part of the plaintiff in riding over the depression. To say that she could have ridden over it without difficulty of necessity involved some care and attention on her part, and what she could safely do in riding upon such a walk and over such a depression. Putting in the question what would be necessarily embraced in answering it would, in effect, be to ask the witness whether, in his opinion, the plaintiff, in the exercise of ordinary care, would have been thrown off her wheel in riding over such a depression as described to him. The judgment of these matters was within the province of the jury. The following authorities fully support the views herein expressed, and well demonstrate the inadmissibility of this testimony: Edwards v. Worcester, 172 Mass. 104, 51 N. E. 447; Buxton v. Somerset P. Wks., 121 Mass. 446; Little Rock T. & E. Co. v. Nelson, 66 Ark. 494, 52 S. W. 7; Gavisk v. Pacific R. R. Co., 49 Mo. 274; Brunker v. Cummins, 133 Ind. 443, 32 N. E. 732; Musick v. Latrobe Borough, 184 Pa. 375, 39 Atl. 226; Limberg v. Glenwood L. Co., 127 Cal. 598, 60 Pac. 176, 49 L. R. A. 33; City of Chicago v. McGiven, 78 Ill. 347; Georgia R. R. Co. v. Hicks, 95 Ga. 302, 22 S. E. 613; Central, etc., R. R. Co. v. Goodwin [Ga.], 47 S. E. 642; New England Glass Co. v. Lovell, 7
Furthermore, this testimony was not even of the nature of opinion evidence. It was merely argumentative. The witness was permitted to advance a matter of mere argument why the evidence of the defendant as to the character of the ditch was not probable. Even as an argument, it was fallacious. The fact of appellant’s falling or not did not support the hypothesis adduced to be proved by it, the character of the ditch. Such an act no more tended to prove its character than it did want of care or attention on her part, or matter of mere accident, or a variety of other things.
We also are of the opinion that the error was prejudicial to the defendant. Erom the evidence on behalf of plaintiff as to the character of the ditch, a jury may find that the walk was unsafe; from the evidence on behalf of the defendant, that it was reasonably safe. On conflicting evidence they found for the plaintiff. We cannot say this so-called opinion evidence did not influence the jury in their finding. The purpose of its admission was to negative defendant’s evidence as to the depth of the ditch, and to corroborate plaintiff’s. It may have had such effect, and may have been the very thing that induced the jury to find the depth of the ditch as claimed by plaintiff, and thus to find the defendant guilty of negligence in maintaining a walk with such character of defect. (Railroad Co. v. Wilson, 12 Colo. 20, 20 Pac. 340; Smuggler Union M. Co. v. Broderick, 25 Colo. 16, 53 Pac. 169, 71 Am. St. Rep. 106; Boston & Alb. R. R. Co. v. O’Reilly, 158 U. S. 334, 15 Sup. Ct. 830, 39 L. Ed. 1006; Vicksburg & M. R. R. v. O’Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299.)
The judgment of the court below is reversed, with costs, and a new trial granted.