| Wis. | Jan 15, 1875
The first exception relied on to reverse the judgment is taken to the ruling of- the court excluding evidence offered on the part of the plaintiff. The witness Lynn was asked this question: “ What in your opinion would cause a stage to tip over at that point, at that time?” This question was objected to, 'and excluded. This ruling is now conceded to be correct by the plaintiff’s counsel. The samé witness was then asked this : “ State, if you know, from your knowledge of the condition of the road at that time, what would be the chances for a stage coach to tip over, being driven by an ordinarily careful, prudent driver.” This question was objected to, and rejected. ¡ The counsel for the plaintiff now insists that the question was a proper one, and should have been answered. It seems to us, however, that the question was objectionable, because it really called for the opinion of the witness upon a matter which the jury were to pass upon. For, though the witness might be well acquainted with the condition of the road, yet, from the nature of the case, he could not know what would be the “ chances ” or likelihood of the stage tipping over at that place, when driven in a careful, prudent manner. He might balance the probabilities in his mind, and express an opinion or belief on the subject; but this would only be substituting his opinion or judgment for that of the jury. When the facts were all before the jury, then it was their duty to determine whether the tipping over of the stage was caused by some defect in the highway, or by careless driving, or because the stage coach was overloaded. The counsel, under the second point in their brief, refer to and rely upon the familiar rule that witnesses must generally speak to facts, and that they are not allowed to give opinions, unless they are experts, and then only upon questions of science and skill. It seems to us the opinion of. the witness was asked in respect to a matter involving no professional skill, and about which the jury were to
The next point presents a question of no little difficulty, as affecting the judgment; and we have had some doubt as to how it ought to be decided. This witness was asked, on his cross examination, the question : “ Was that stage overloaded, in your opinion?” This question was allowed to be answered, against the plaintiff’s objection. How it happened that the witness was allowed to give his opinion in evidence for one party, and not for the other, is not explained in the record. But it seems to us that the question was an improper one, and should have been excluded, under the rule already referred to. It was calling for the opinion of the witness upon an issue or fact which belonged to the jury to determine. And it is not to be presumed, in a matter of this kind, which was within the knowledge and experience of ordinary jurymen, that they were less competent to arrive at correct conclusions upon the subject, by the exercise of their own judgment, than the witness himself. One ground of liability sought to be established was, that the defendants had failed to exercise due care and prudence in loading the coach. If the stage was overloaded, then the defendants were guilty of negligence in that regard, and might be responsible, providing it occasioned the injury complained of, and the plaintiff was without fault. And we therefore think the question was improper and inadmissible. The inquiry then arises, whether its admission should work a, reversal of the judgment. This is the point about which we have considerable doubt. If we were satisfied that the reception ■ of the improper testimony could have injuriously affected the plaintiff, our duty would be plain. But we think the evidence was harmless, and could not have prejudiced the plaintiff. All the facts in regard to the capacity of the stage, and as to how many persons could be carried upon it, were be fore the jury; and they were entirely competent to arrive at a correct conclusion whether it was overloaded. We cannot pre~
The last exception, relied on for a reversal of the judgment, is that taken to the ruling of the court denying the motion for a new trial. It is said that the verdict was contrary to the evidence. This may be conceded, and yet we cannot reverse the decision of the court for that reason. It cannot be successfully claimed that there is no testimony to support the verdict For there is testimony from which the jury might find that the stage coach was not overloaded, but had capacity to safely carry outside as many passengers as were seated upon it; that it was in a good condition ; and that the driver was a prudent person, who was exercising all care and diligence to prevent any accident when the stage upset. This testimony was all before the jury, whose province it was to determine what facts were proven by it; and the learned circuit judge who had tried the cause saw fit to deny the motion for a new trial. Under the circumstances we do not feel warranted in saying that he did not exercise a wise discretion in the matter.
This disposes of all the material questions in the case.
By the Court. — The judgment of tire circuit court is affirmed.