No. 5491 | Cal. | Jul 1, 1878
The ultimate question in issue at the trial was, whether it was an actionable negligence in the testator of these respondents to cause the cattle of the plaintiff to be driven into the corral under the circumstances alleged. When those circumstances were established by proof, the ultimate fact of negligence on the one hand, or ordinary care upon the other, was a matter to be inferred by the jury. The ultimate fact of negligence in such a case is not one to be established by the mere opinion of witnesses called to testify. The evidence of experts is not admissible. A clear expression of this principle is found in New England Glass Company v. Lovell, 7 Cush. 321, where Chief Justice Shaw observes as follows: “In applying circumstantial evidence which does not go directly to the fact in issue, but to facts from which the fact in issue is to be inferred, the jury have two distinct duties to perform: First, to ascertain the truth of the fact to which the evidence goes, and thence to infer the truth of the fact in issue. This inference depends upon experience. When this experience is of such a nature that it may be presumed to be within the common experience of all men of common education moving in the ordinary walks of life,
These views were subsequently adopted and applied in the case of White v. Ballou, 8 Allen, 408, where the general question was one of negligence in kindling a fire under certain circumstances appearing in proof.
For these reasons we are of opinion that the evidence of the witness Parsons, and others, testifying to their opinion of the safety of the corral, was inadmissible, and should have been excluded.
Judgment and order denying a new trial reversed, and cause remanded for a new trial.