No. 79 | 5th Cir. | Jan 23, 1893
Lead Opinion
(after stating the facts.) The only question to be considered in this case is whether the answer to the question objected to should have been admitted in evidence. In the view we take of the case, it will be unnecessary to determine whether the exception taken to the ruling upon the objection to such admission was taken at the time and on trial, or whether the assignment of error was technically correct or not. The inquiry in this court must be limited to matters presented to and considered by the court below, and in this case must, therefore, be confined,to the objection made at the time, namely, that “the witness was not an expert, and his opinion, as called for, was inadmissible, and he was not qualified to answer the question.” The ground of the objection was that the witness was not an expert, and was not qualified to express an opinion. The contention that no one not shown to be an expert by scientific research is qualified to express an opinion in evidence cannot be accepted to the extent it is urged. In Insurance Co. v. Lathrop, 111 U.S. 612" court="SCOTUS" date_filed="1884-05-05" href="https://app.midpage.ai/document/connecticut-mutual-life-insurance-v-lathrop-91148?utm_source=webapp" opinion_id="91148">111 U. S. 612, 4 Sup. Ct. Rep. 533, the supreme court, speaking by Justice Harlan, says:
“There are matters of which all men have more or less knowledge, according to their mental capacity and habits of observation, — -matters about which they may and do form opinions sufficiently satisfactory to constitute the basis of action. While the mere opinion of a nonprofessional witness, predicated upon facts detailed by others, is incompetent upon an issue of insanity, his judgment, based upon personal knowledge of the circumstances involved in such an inquiry, certainly is of value.”
The question in that case was one of insanity, and the opinion of nonexperts, who' testified from facts within their own knowledge, was held admissible. In Railway Co. v. Warren, 137 U.S. 348" court="SCOTUS" date_filed="1890-12-08" href="https://app.midpage.ai/document/montana-railway-co-v-warren-92885?utm_source=webapp" opinion_id="92885">137 U. S. 348, 11 Sup. Ct. Rep. 96, the question was the same, but the testimony introduced was in a determination of values, and the same conclusion was reached. It is true the subjects in those cases were different, but the arguments and reasons for the admission of the testimony apply with equal force to this case. In Porter v. Manufacturing Co.,
"Whether such witness has shown himself sufficiently well informed by special observation and knowledge to be permitted to express Ms opinion is a question for the trial court, which will not be reversed unless unquestionably error. Manufacturing Co. v. Phelps, 130 U.S. 520" court="SCOTUS" date_filed="1889-04-22" href="https://app.midpage.ai/document/stillwell--bierce-manufacturing-co-v-phelps-92495?utm_source=webapp" opinion_id="92495">130 U. S. 520, 9 Sup. Ct. Rep. 601; Spring Co. v. Edgar, 99 U.S. 645" court="SCOTUS" date_filed="1879-05-18" href="https://app.midpage.ai/document/spring-co-v-edgar-89994?utm_source=webapp" opinion_id="89994">99 U. S. 645; Railway Co. v. Warren, 137 U.S. 348" court="SCOTUS" date_filed="1890-12-08" href="https://app.midpage.ai/document/montana-railway-co-v-warren-92885?utm_source=webapp" opinion_id="92885">137 U. S. 348, 11 Sup. Ct. Rep. 96. In this case the witness had testified of "his long residence upon his farm in the immediate vicinity of the bridge and embankment complained of, his observation and experience in five overflows at that place, of the manner and. effect of the different overflows before the building of the bridge, at the time the bridge w*as carried away, and when it was subsequently re-established; and we see no error in the court in finding him qualified to express an opinion in the case. The exception to the ruling cannot be sustained, and we find no error in the record.
The judgment will therefore be affirmed.
Rehearing
On Rehearing.
(February 20, 1893.)
In this case an application for a rehearing has been made on the ground that wo erred in sustaining the ruling of the trial court as to the admission of expert evidence. On the trial a question, to the jury was as to the effect of defendant’s embankment during the overflow of 1890 on the flow or passage of water in its usual course. It could only be proved from personal observation or experience. Those who bad observed the flow of the river before and after the embankment were, in the nature of things, the best witnesses. The witness whose evidence was admitted on this subject over the defendant’s objections testified from both observation and experience. He was an expert for the case; not a scientific one, but a practical one. His opportunities for observation and the character and sufficiency of his experience were fully shown. It was for the jury to determine the weight to Which his opinion was entitled. As a matter of law7, the qualification of a witness to testify as to cause and effect in a given case is a question for the trial judge, and his ruling will not be disturbed unless clearly erroneous. “Whether a witness called to testify to any matter of opinion has such qualifications and knowledge as to make his testimony admissible is a preliminary question for the judge presiding at the trial, and
“This preliminary question of fact as to whether a witness is an expert qualified, to pronounce an opinion, as we have held in Oil Oo. v. Gilson, (decided in this term,) must, in a great measure, he confided in the discretion of the court below trying the cause, and we will not reverse either on account of admission or rejection of such evidence unless in a clear and strong case.”
In Oil Co. v. Gilson, 63 Pa. St. 146, referred to, it is said:-
“An expert, as the word imports, is one having had experience. No clearly-defined rule is to be found in the books as to what constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked. There are some matters of which every man with ordinary opportunities of observation is able to form a reliable opinion. Wilkinson v. Moseley, 30 Ala. 562" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/wilkinson-v-moseley-6506040?utm_source=webapp" opinion_id="6506040">30 Ala. 562; De Witt v. Barly, 17 N.Y. 340" court="NY" date_filed="1858-06-05" href="https://app.midpage.ai/document/de-witt-v--barly-and-schoonmaker-3584121?utm_source=webapp" opinion_id="3584121">17 N. Y. 340. It is not necessary, as it is said in one case, to call a drover or butcher to prove the value of a cow, (Railroad Co. v. Irvin, 27 Ill. 178" court="Ill." date_filed="1862-01-15" href="https://app.midpage.ai/document/ohio--mississippi-railroad-v-irvin-6950453?utm_source=webapp" opinion_id="6950453">27 Ill. 178;) nor is it imperatively required that the business or profession of the witness should be that which would enable him to form an opinion, (Van Deusen v. Young, 29 Barb. 9" court="N.Y. Sup. Ct." date_filed="1858-09-06" href="https://app.midpage.ai/document/van-deusen-v-young-5459581?utm_source=webapp" opinion_id="5459581">29 Barb. 9; Smith v. Hill, 22 Barb. 656" court="N.Y. Sup. Ct." date_filed="1856-09-09" href="https://app.midpage.ai/document/smith-v-hill-5459101?utm_source=webapp" opinion_id="5459101">22 Barb. 656; Price v. Powell, 3 N.Y. 322" court="NY" date_filed="1850-04-05" href="https://app.midpage.ai/document/price-v--powell-3577334?utm_source=webapp" opinion_id="3577334">3 N. Y. 322; Fowler v. Middlesex, 6 Allen, 92.) * * * While undoubtedly it must appear that the witness has enjoyed some means of special knowledge or experience, no rule can be laid down in the nature of things as to the extent of it. It must be for the jury to judge of the weight to which his opinion is entitled.”
Our decision in this case seems not only to be based upon reason and the common sense of the case, but upon approved authority.
A rehearing is refused.