Railway Co. v. Bruce, 55 Ark. 65

Railway Co. v. Bruce

55 Ark. 65 | Ark. | 1891

Hemingway, J.

1. opinion evidence as to -freight charges, While it is sometimes true that a witness . . . . . ... may give in evidence his opinion as an expert, it is also true that such opinion is admissible because of the special knowledge or skill of the witness, and that it will be restricted to the particular matters to which such special knowledge and skill relate. When expert evidence is admissible, it is for the trial court to say whether a witness offered is qualified to testify as such, and all reasonable presumptions will be indulged to sustain its decision. But where a witness is permitted to state his opinion, with nothing tending to show that he is competent, the action cannot be sustained. Rogers, Expert Ev., sec. 22.

We cannot say that, upon the trial of Robinson’s competency as an expert, the court erred in admitting his opinion. But there was absolutely nothing tending to show special knowledge or skill in.Benton Turner, and his opinion was inadmissible. He testified that he thought if was worth as much to haul stone on a railroad as brick, and that defendant’s charge for the former service was unreasonable. His-opinion related to the very matter to be decided, and may have influenced the jury in its verdict; and yet there is nothing in the record to show that he had any more knowledge or skill in the matter of adjusting freight rates than anyone of the jury or any other citizen of the county. Without such qualification, his opinion should not be permitted to influence a finding, and should have been rejected as evidence. Lawson, Expert Evidence, pp. 203 and 497. It is insisted that his opinion was admissible because it related to the value of services. The premise does not justify the conclusion. The value of services may generally be proved by opinion evidence, but not by the opinion of anybody who may be offered. Only such witnesses as have special knowledge as to the particular matter of value can give an opinion in reference to it, for no other can state an opinion entitled to any weight. So a farmer may state his opinion as to the value of farming lands, but not of mining lands; and a lawyer may state his opinion as to the value of legal services, but not of medical services.

2. carrier’s charges. The act of March 24, 1887, prohibits carriers from making unjust or undue discrimination in charges for freight, as well as from making unjust or unreasonable charges therefor. The first, third and fifth instructions, as asked by the defendant, ignored the latter feature of the act, and, as modified and given by the court, were as favorable as defendant could ask. The second instruction asked by the defendant implied that if the carrier classified its freight, fixed rates and published a schedule thereof, there could be no violation of the law growing out of a charge in accordance with the published schedule. It ignored the wrong of an unjust or unreasonable charge, and assumed that the carrier satisfied the demands of the law by observing the classification and rates of a published schedule, though the former were arbitrary and the latter unjust and unreasonable. Such is not the law. The carrier may classify freights and fix rates, but it cannot by an arbitrary classification justify an unjust or unreasonable charge.

3.. Duty t>f carrier to unload car. If the consignee voluntarily binds himself by an agree- . .. . , . . ment, express or implied, to unload freight at the place oí consignment, such agreement excuses the carrier from the duty to unload, prescribed by the seventh section of the act of 1887, page 116. The fourth instruction asked by the defendant was not ah accurate statement of the law, and should be recast to conform to the principle above stated.

4. When penal ty recoverable. The eighth instruction asked by the defendant was properly refused. The act provides a penalty for the violation of either of several of its provision ; and a right to the penalty is shown by proof that anyone of said provisions has been violated.

5. Evidence as to unreasonable charge. The fifth instruction asked by the defendant was properly refused in the form presented; as modified and given by the court, it was as favorable to the defendant as it could ask. That the defendant’s rate was 8 cents per hundred pounds on brick while it was but 4-^ cents on stone, was a circumstance which the jury was at liberty to consider in determining whether the rate on brick was unjust or unreasonable. What weight should be given to that circumstance was for the jury to say, in the light of all the evidence in the cause, and the court was not authorized to say that it was sufficient on the one side or insufficient on the other. If the carrier placed stone in a special class and fixed for it a special rate, for reasons deemed sufficient by it, it cannot be said as a matter of law that this was an unjust or unreasonable discrimination against the plaintiff and other shippers of brick. What considerations may properly enter into the determination of the justness and reasonableness of a rate, we shall not attempt to define or outline. The circumstance relied upon is one, and the competency of others may be determined as cases arise that present them. See A. & E. Enc. of Law, article, “ Freight,” vol. 8, p. 900.

6. Attorney’s fee. The court properly assessed an attorney’s fee against the defendant. Dow v. Beidelman, 49 Ark., 455.

The other matters adverted to in the argument may be tested by the principles herein announced without more explicit decision upon each. The error in admitting the evidence of Turner is sufficient to require that the judgment be reversed, and it is so ordered.