111 F. 849 | 8th Cir. | 1901
Lead Opinion
after stating the case as above, delivered the opinion of the court.
P'rom the foregoing analysis of the pleadings, it appears that it stood confessed at the trial that the cattle in question were kept loaded on the cars in making the journey from Caliente, Cal., to Reno, Nev., considerably more than 28 hours, the limit prescribed by an act of congress for keeping stock confined in cars while in transit (Rev. St. § 4386); that there was considerable delay in starting the train from Reno after the cattle had beefi reloaded and made ready to start from that station; that they were kept on the cars continuously at least 36 hours while being transported from Reno to Ogden, Utah; and that as a result of the trip some of the cattle died, all were more or less injured, and that the owners of the herd sustained a considerable loss. The principal defenses which the defendant company seems to have relied upon to shield itself from liability were these: That the cattle were in such a poor physical condition at the time of the shipment, which fact was unknown to the carrier, but was known to the shipper, that they could not have been transported for such a long distance without serious injury; and that whatever additional injury was sustained by their being kept in the cars beyond the period prescribed by law conld not be recovered by the plaintiffs, because their being so kept was due to the plaintiffs’ own fault, or to the fáult of their agents who had the stock in charge. Much testimony was introduced at the trial tending to show the physical condition of the herd when the shipment took place, the various incidents of the journey, the causes which induced delay, the reasons why the cattle were not unloaded, watered, and fed more frequently, and who was responsible for the delay and the undue confinement of the cattle in the cars during the journey. The evidence on these points was somewhat conflicting, but the issues thus raised have been settled by the verdict of the jury. The principal questions discussed in the briefs and at the bar, which we are required to consider, relate to' the admission and exclusion of evidence, and to the refusal of cert ain instructions which were asked by the defendant.
One of.the first contentions on the part of the defendant company is that the trial court should have directed a verdict in its favor because the complaint which was filed by the plaintiffs counted upon a violation of the common law duties of the carrier, while the answer and the proofs disclosed that the cattle were transported under a special contract which relieved the carrier from some of its stringent common-law obligations. We do not find that any question of this sort was raised or discussed in the .trial court, and, not having been
The next proposition is that error was committed in permitting a witness by the name of Black, who was one of the men who had charge of the cattle on the trip from Caliente to Ogden, and who had followed the butchering business for many years, and in that capacity had had very much to do with cattle, to say that it took “a great deal longer to take this train” from Sacramento to Reno than any train “he had ever come over on the same road,” and to say, further, that “26 to 28 hours is long enough to keep cattle on the cars without feed or water.” The first of these statements was neither very important nor improper, while the witness’ acquaintance with cattle and knowledge of their habits and powers of endurance was much greater than that of the average person, and qualified him to say, as he did in substance, that 26 or 28 hours’ confinement of cattle on cars was long enough, because confinement for a longer period would wear them out, cause them to fall or lie down, and have a general bad effect. It can scarcely be claimed that the admission of this testimony constituted a reversible error.
The same view must be taken concerning several other exceptions to the admission of evidence. One witness who had been a railroad conductor was allowed to say that the run from Caliente to Ogden “was a very poor run”; and with relation to the blowing out of the cylinder head of an engine, which occurred during the trip, and occasioned considerable delay, to say further that such accidents sometimes happen on railroads, but are more apt to happen “with a poor class of engines.”
Another witness (one of the plaintiffs), who was a cattle dealer of ; large experience, and who met and inspected the herd at Ogden on
Another witness, who was a cattle dealer of considerable experience, and who also saw the herd on its arrival at Ogden, was allowed to testify, in substance, that the bad condition of the cattle on their arrival was due to the fact that they “had been very badly handled, and perhaps misused on the cars.”
To the action of the trial judge in all of the foregoing instances, and in some others of a similar character which we may have overlooked, exceptions were reserved, and have been argued on appeal. But we are unable to say that the action of the lower court was materially erroneous. The testimony was all germane to the various issues in the case, and, in so far as it consisted of opinions, it seems to have been elicited from persons who were well qualified by experience to express the same. It is manifest, we think, that the judgment below cannot be reversed because of the errors last enumerated, unless we are overtechnical in the application of the rules of evidence.
The special contract under which the cattle in question were transported provided, in substance, that any compensation for injuries claimed to have been sustained by the cattle while in transit should be adjusted between the parties on the basis of the declared or represented value of the stock at the time and place of shipment,—that is, at Caliente, Cal.,—and that the damages should not exceed the declared value. With a view of showing, in accordance with the provisions of the special contract, what would have been the market value of the cattle at Caliente, taking into account the alleged injuries which they had sustained during the trip on account of the defendant’s negligence, a long hypothetical question, covering more than a page of the record, was propounded to one of the plaintiffs’ witnesses, who was allowed to answer it notwithstanding an objection which was interposed by the defendant company. The objection was that the supposed facts as recited in the question were not fairly in accordance with the evidence which had been introduced by the plaintiffs. The question was not criticised in any other respect, nor did
The defendant company proposed to prove that while the cattle in controversy were being loaded on the cars at Caliente on November 3, 1898, one of the plaintiffs’ agents, who was supervising the loading, declared “that he had been buncoed”; also that he said, in substance, that the cattle were not the cattle that had been bought in the field; and that he suspended the loading for a short time, and threatened to unload those that were already on the cars. These statements of the agent were excluded, and an exception was saved. The evidence consisted of unsworn declarations by a third party, who was not shown to have had any authority to bind the plaintiffs by making such statements concerning the condition of the cattle. Nor were they made under such circumstances that they can be regarded as admissible on the ground that they were the res gestae of an act which the agent was then performing in behalf of his principal, nor was any foundation laid for introducing them in evidence for the purpose of impeaching the person by whom the statements are said to have been made. The proposed testimony was properly excluded, and the same may be said of the action of the trial court in excluding similar statements which the defendant sought to prove by another witness by the name of Byers, who claims to have been present when the cattle were loaded, and to have heard certain disparaging remarks concerning the condition of the cattle, which were made by persons who were at the time in charge of the herd, and were assising in the loading of the same.
Complaint is further'made by the defendant because its chief train-dispatcher was not permitted to answer the question, “What care and diligence did the defendant exercise to prevent delay on the road in going forward and in overcoming any delay when it occurred?” But as the answer which the witness gave to that question was “that everything was done that could be done to prevent delay of this train in going forward and in overcoming any delay when it occurred,” and as this was a mere conclusion of law on the part of the witness which embodied no statement of the facts on which the conclusion was based, it is' manifest that no error was committed in excluding the question and the answer thereto.
The defendant company offered to read from the deposition of a ■witness by'the name' of S. J. Root, who testified that he helped to
We are of opinion that each of the foregoing exceptions was well taken. The condition that the cattle were in when they were shipped was one of the principal issues in the case, inasmuch as the defendant contended that, through want of sufficient nourishment for some time prior to the shipment, the cattle were poor and weak, and incapable of withstanding the fatigue incident to a long journey by rail,
Counsel for the defendant have indulged in some criticism of the instructions which were given by the trial court, but no exceptions were taken to the instructions so given, except to the one which dealt with the measure of damages, and the exception in that behalf was very general, being merely, “We except * * * to the instruction given as to the measure of damages.” Counsel, as it seems, did not attempt to point out to the court in what respect the instruction cohcerning the measure of damage was erroneous or misleading. In view of the provision in the special contract which required the damages, if any were claimed, to be adjusted on the basis of the value of the cattle at the place of shipment, and not to exceed the declared value at the time and place of shipment, the court in its charge gave the following directions, in substance, on the subject of damages: That in no event could the defendant be held responsible for any loss incident to the journey which resulted from the low vitality of the cattle, and was not induced by the carrier’s negligence; that, if such negligence on the part of the defendant had been shown as entitled the plaintiffs to recover, the measure of damage would be the difference in Value of the cattle at Caliente, Cal., on November 3, 1898, in the condition in which they were in fact delivered at Ogden, and
This part of the charge is criticised by counsel with a refinement of reasoning which is not usual, and,, as we think, would not have been appreciated by the jury; for the reason, as counsel say, that in fixing the market value of the cattle at Caliente when they were delivered for shipment the jury may have supposed from the language employed in one clause of the instruction that they were at liberty to place a higher value on the cattle than that fixed by the plaintiffs in the special contract, and that in this way the difference between the two values which was made the measure of damage might have been exaggerated. We do not think that the paragraph of the charge in question is fairly susceptible of such an interpretation; and we have no reason to suppose that it was interpreted by the jury as counsel assert that it might have been. The damages awarded certainly did not exceed the declared value of the cattle, for the sum allowed did not exceed $9 per head for grown animals. In view of 'all that was said by the court, we are satisfied that the rule for the admeasurement of damages was properly declared, and in language that was well understood.
The defendant’s attorneys preferred numerous requests for instructions, and excepted to-the refusal of xi of such special requests. But the instructions actually given embodied, as we think, the substance of these requests, in so far as they enunciated correct propositions of law. The issues whether there was unreasonable delay in transporting the cattle, in view of all the circumstances attending their transportation; whether the defendant furnished reasonable facilities for unloading the cattle, so that they need not have been kept on, the cars longer than the statutory period; and whether the plaintiffs exercised proper care and diligence in availing themselves of such facilities or were remiss in the discharge of that duty, and by such neglect contributed to the injuries complained of,—were each clearly defined and fairly submitted to the jury; and these, in connection with the issue respecting the physical condition of the cattle when delivered to the carrier, were the most vital issues in the case. Notwithstanding the complaint made by counsel that the court’s charge was too general, we do not conceive it to be probable that the defendant was prejudiced by the refusal to give any of the special
Upon the whole, we conclude that the record discloses no material error other than the one heretofore pointed out, on account of which we deem it necessary to reverse the judgment, and direct a new trial. It is so ordered.
Dissenting Opinion
(dissenting). I concur in the opinion of the court on all points except the one upon which the judgment of the lower court is reversed. The competency of a witness to give opinion testimony depends upon either the actual experience of the witness with respect to the very subject-matter under investi-' gation, or his previous study and research concerning the- same, and sometimes on both. It is not claimed that the witnesses whose opinion testimony was excluded had made the subject of the effect upon cattle of a change of climate, or the effect upon them of transporting them by rail in any climate, a matter of special study or research. It is not shown that any one of them had any actual experience on the subject, or had personally observed the effect on cattle of a change from a warm to a cold climate, or that he had ever accompanied a shipment of cattle by rail at any time in any country. The general rule as to the admissibility of opinion testimony is well ■ settled. In Railway Co. v. Edwards, 49 U. S. App. 52, 24 C. C. A. 300, 78 Fed. 745, this court said:
“The general rule undoubtedly is that witnesses are to testify to facts, and no-t to give their opinions; but this rule has its exceptions as familiar and well settled as the rule itself. The exceptions rest upon the common ground of necessity. Among- these exceptions is this, one: That a witness, having special knowledge and experience as to the value of property, animate or inanimate, and as to how the value of such property is affected by certain conditions or treatment, may give his opinion as to how much the property was damaged or benefited by such conditions or treatment. In many cases witnesses are allowed to testify to their opinions, not because they are ‘experts,’ in the technical sense of that term, but because they have special knowledge of the particular facts in -the case, - which the jurors have not. It is manifest that one who has never handled or shipped cattle by rail, and has never looked after and attended them while in the cars en route to their destination, can have no accurate conception of the effect upon cattle of confining them in ears, standing still on the track for 10 or more hours, at the end of a long journey.”
Not one of the witnesses testified that he knew from personal observation and experience the effect of cold weather on cattle in or out of the cars-. The only experience they ever had with cattle was driving and herding them in southern California, a semitropical climate. They had no special knowledge derived from personal experience and observation, or otherwise, of the effect of cold upon cattle.
“Whether a witness called, to testify to any matter of opinion lias such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial; and his decision of it is conclusive, unless clearly shown to be erroneous in matter of law.”
This rule has been affirmed many times. In Iron Co. v. Blake, 144 U. S. 476, 484, 12 Sup. Ct. 731, 36 L. Ed. 510, the court said:
“How much knowledge a witness must possess before a party is entitled to his opinion as an expert is a matter which, in the nature of tilings, must lie left largely to tile discretion of the trial court, and its ruling thereon will not be disturbed unless clearly erroneous.”
The reports of that court will be searched in vain for a case where the ruling of a lower court holding that the witness was incompetent to give opinion testimony has been reversed upon the state of facts disclosed by this record. Applying the rule of the supreme court to the testimony in this case, it is clear the lower court did not err. Its ruling wras not founded on any error in matter of law. The lower court held that these witnesses were not shown to possess any special knowledge on the subject, or any knowledge above that of the average citizen. This was purely a question of fact: to be de
There is another view of the case which disposes of this alleged error. Facts within the knowledge of every man of common intelligence cannot be made the subject of opinion testimony. Jurors, as well as all men of common intelligence, know that cattle deprived of food for a long time will suffer from hunger, and that cattle taken suddenly from a warm to a rigorous climate will suffer from the cold, and it was only proposed to confirm these obvious and common truths by the opinions of these witnesses. As the observation and experience of these witnesses had been no greater than that of every farmer, ranchman, and dairyman in the land, they could rightfully testify to facts within their knowledge only, and not to their opinions. Moreover, there was a great mass of direct testimony on both sides showing the exact condition of the cattle at and before their shipment, and their treatment, condition, and action from the time they were placed in the cars until they were taken out at Ogden. The direct testimony on both sides covered every foot of ground and every hour of time from the time the cattle were placed in the cars until they were taken out at Ogden. The opinion, therefore, of these vaqueros, if competent, could not possibly throw any new light on the case or influence the verdict of the jury in the slightest degree. Their opinions, as disclosed by the record, were nothing more than the jury of their common knowledge, as well as from the direct testimony of the witnesses for both sides, already knew. At most, it was weakly cumulative of the direct and positive testimony of witnesses who accompanied the cattle on the train, and of the common knowledge of all men. The rejection of such opinion testimony, if error, was error without prejudice. The rule is well settled that, where a ruling either in admitting or rejecting evidence could not have influenced the verdict, the error is always to be regarded as harmless.
The judgment of the circuit court should be affirmed.