56 Ark. 612 | Ark. | 1892
1. The damage which the plaintiff sued to recover was not original in the sense that it necessarily resulted from the erection of the railway embankment. But after that structure was completed the injury complained of was still entirely uncertain and contingent and such as might never happen. In this respect the case is similar to that of the St. Louis, etc. R. Co. v. Biggs, 52 Ark. 240; and, according to the rule there laid down, the statute of limitations did not begin to run until the crops were destroyed. Troy v. Cheshire R. Co. 23 N. H. 83. The defendant’s tenth instruction was not, therefore, applicable to the facts, and the court was right in refusing to give it.
2. The opinion of Royston Nash, admitted in evidence against the objection of the defendant, does not 0 ** t appear to us to fall within any of the exceptions to the general rule requiring witnesses to state facts and excluding their mere opinions. It is not claimed that Nash possessed any scientific knowledge on the subject as to which his opinion was given, and he did not testify as an expert. As a non-expert, in order to make his opinion competent, it was essential not only that it should relate to a matter with which he was specially acquainted, but the subject matter must have been such as could .not be otherwise sufficiently described. For if it was practicable for him to detail to the jury the facts within his knowledge as fully and perfectly as he had observed them, then the jury should have been left free to draw their own conclusion, and his opinion was inadmissible. 1 Whart. Ev. sec. 512; 1 Greenleaf, Ev. sec. 440, note a, p. 535; Bennett v. Meehan, 83 Ind. 566 ; Commonwealth v. Sturtivant, 117 Mass. 122 ; Fort v. State, 52 Ark. 180; 1 Bishop, Cr. Pro. sec. 1178 ; Brown v. State, 55 Ark. 599; Railway Co. v. Bruce, 55 Ark. 70 ; Railroad Co. v. Schultz, 43 Ohio St. 270, and cases cited; Fraser v. Tupper, 29 Vt. 409; Crane v. Northfield, 33 Vt. 124. The case of the Gulf, Colorado & Santa Fe Railway v. Locker, 14 S. W. Rep. 611, cited to support the admission of the opinion in question, follows a ruling of the same court in International, etc., R. Co. v. Klaus, 64 Texas, 294 ; and the decision in the latter case appears to rest mainly on the authority of Porter v. Mfg. Co. 17 Conn. 249. In the Connecticut case it was held that the opinion of a non-expert as to the sufficiency of a dam to withstand the pressure of the waters of a certain stream was properly received, in connection with the facts on which it was based. The court did not, however, uphold the competency of the opinion- on the ground merely that the witness had enjoyed special opportunities for observing the dam and the stream across which it was erected ; but it was announced, as an additional reason for the decision, that the facts on which the witness’ opinion was founded could not be definitely stated to the jury. And we find nothing in the opinions of the Supreme Court of Texas in the cases referred to, which indicates that the facts in those cases were not also regarded as of such nature that they could not be reproduced before the jury precisely as they appeared to the witness.
Nash had resided on Red River for many years, and his observation of its overflows was probably such as to make any opinion thus formed admissible if the facts observed could not themselves be perfectly described. But we do not see from the record that such description was impracticable. Having stated that since the building of the railroad the overflows have been more frequent and higher than they were 'previous to the road’s construction, he was asked to state the cause of this difference, and answered that it was' caused, in his judgment, by the embankment on which the track of the road is laid. This was the opinion objected to; and, as it appears in the record, it would seem to be founded alone on the increased frequency and depth, bf the overflow. It is clear that these two facts could have been placed before the jury without the least difficulty. It was only necessary to mention them. The witness, however, in the course of his further testimony, stated some additional facts, which,, it is fair to presume, were not without influence in forming his opinion. The more important of the facts thus subsequently stated were that before the road was built the plaintiff’s lands were overflowed from the front, or towards the river, and that now they are first covered with waters coming from the rear in the direction of the railroad ; that, since .the construction of the road the current of the water, above is not so swift as formerly; and that, during the overflow which destroyed the crops, the water was four or five feet higher on the north side of the road* than it was on the south side. These additional facts could also be detailed in such manner as to enable the jury to understand their force and bearing as fully as the witness did ; and they did not cure the previous error of admitting his opinion. Railroad Co. v. Schultz, 43 Ohio St. 270; Fraser v. Tupper, 29 Vt. 409.
3. The court’s charge properly limited the damages recoverable by the plaintiff to the actual value of the crops destroyed, with interest thereon from the date of the injury at the rate of six per cent, per annum. Byrne v. Railway Co. 38 Minn. 213 ; Folsom v. Log Driving Co. 41 Wis. 602; Lommeland v. Ry. Co. 35 Minn. 412; Sabine R. Co. v. Smith, 73 Texas, 1. But, under the circumstances of the case, a wrong standard of value was given to the jury by permitting the plaintiff to prove the average yield of his lands and the market value of similar crops sold after their maturity the year his crops were .planted. 3 Sedg. Dam. sec. 937. The extent of his loss is to be measured by the value of the crops in the condition they were in at the time of their destruction. Richardson v. Northrup, 66 Barb. 85. And the method-proper to be observed in ascertaining their value at that time cannot be better stated than by quoting the language used by Mr. Sutherland in treating of the measure of damages applicable to the class of cases to which this belongs: “The jury,” he says, “ may estimate, with the aid of testimony,- the value of the crop at the . time of its destruction, in view of all the circumstances existing at that time, as well as at any time before the trial, favoring or rendering doubtful the conclusion that it would attain to a more valuable condition, and all the hazards and expenses incident to the process of supposed growth or appreciation.” . 1 Suth. Dam. 193.. The principle of the text quoted is exemplified by the case of Parsons v. Pettingell, 11 Allen, 507. That was an action to recover damages for the destruction of the plaintiff’s house and furniture, destroyed for the purpose of staying a conflagration ; and it was held that, in estimating the damages sustained, the jury should consider the situation of the property and the chance of its being saved, although it was not on fire, and should determine its value with reference to the peril to which it was exposed. And so in this case we think a just valuation of the plaintiff’s crops cannot be made without considering their condition and the circumstances in which they were placed. They consisted of corn and cotton at such stage in their growth that the cotton could have had only a prospective value, and the corn no other value unless it could have been used as fodder. The water which destroyed them was, as the plaintiff testified, backed on to his lands from the rear and passed over them into the river. But the evidence shows that the overflow became general, and that, a few days after the loss of the crops, the river was out of its banks in front of the plaintiff’s farm and covered it with water flowing directly to it. It thus appears that the destruction of the crops by the general overflow was impending, if not inevitable, at the time the water backed upon them. And yet it is evident, from the damages assessed, that the jury have valued the crops as if they might have matured but for the wrong ascribed to the railway. We think the proof did not warrant an assessment so large, and that the court erred in refusing to set aside the verdict.
The judgment will be reversed, and the cause remanded for a new trial.