53 Minn. 532 | Minn. | 1893
The court below erred in excluding the opinions of the witnesses that plaintiff was intoxicated. It was hardly a question for expert testimony, so that — the facts and circumstances, his acts, appearance, and speech, being detailed by other witnesses — a witness might be called to state whether, in his opinion, they indicated intoxication, for the matter being one of observation, and not of science or skill, the jury can judge, from the details given, as well as any one, to whom they might be stated. But there are certain conditions, mental or physical, or both together, the indications of which it is impossible for any witness to adequately describe, so that the relation of them shall have on the mind of the jury the same effect that witnessing them legitimately had on the mind of the spectator. In such cases, from necessity, so that the matter may be fully laid before the jury, the spectator may state the effects the acts, appearance, and speech had on his mind; that is, may give his opinion as to the condition they indicated. It is so in respect to joy, grief, hope, or despondency, (Tobin v. Shaw, 45 Me. 331;) friendliness or hostility, (Blake v. People, 73 N. Y. 586;) fright, (Brownell v. People, 38 Mich. 732; Darling v. Westmoreland, 52 N. H. 401;) jest or earnest, (Ray v. State, 50 Ala. 104;) offensive or insulting manner, (Raisler v. Springer, 38 Ala. 703.) So that a person appears to be well or ill, or acts sanely or otherwise. Cannady v. Lynch, 27 Minn. 435, (8 N. W. Rep. 164.) So a witness not an -expert, who testifies to acts and declarations showing an opportunity to form an opinion, may give his opinion, based on such facts, or mental capacity. Woodcock v. Johnson, 36 Minn. 217, (30 N. W. Rep. 894.)
If intoxication was the cause of plaintiff’s falling, and lying in a helpless condition, on defendant’s track, it was contributory negligence on his part.
The defendant’s offer specified in the fourth assignment of error was rightly excluded. A municipal corporation has, through its council, control and charge of the streets, and may regulate the laying of street-railway tracks upon them; and if the council directs the railway company to lay the tracks upon a specified level or grade, and so laying them makes the street unsafe for ordinary travel, the municipal corporation would doubtless be liable for injuries resulting therefrom. But it could hardly be said that so laying them would be an act of negligence on the part of the railway company. The offer did not propose to show any such direction, or even authority, from the council, but only that, the village engineer having indicated by stakes a grade for paving the street contemplated and contracted for, the railway company, in anticipation of such intended paving, laid its tracks in accordance with the grade thus indicated. That the street was, some time in the future, to be brought to that grade, was no authority to the company to at once lay the tracks according to it, if so doing would render the street unsafe, and thus rendering it unsafe would be negligence with respect to any one injured in consequence.
The evidence of the witness Labby, objected to, was proper.
As there must be a new trial, for the error first above specified, it is unnecessary to consider the assignments of error based upon the charge of the court, further than to say that in the part of the charge specified in the ninth assignment the rule of care required of defendant, under the circumstances, might be understood by the jury more strongly than, we suspect, the trial court intended.
Order reversed.
(Opinion published 55 N. W. Rep. 739.)
