Taylor v. Town of Monroe
43 Conn. 36
Conn.
1875
Check Treatment
Loomis, J.

Thе first question which the motion presents is, whether the defendants, for the purpose of showing that the condition of the road, bridge and railing at the time of the accident was not dangerous or unsafe, could ask witnesses *42acquainted with the place the following questionHas any accident or injury resulted to any person from the want of a railing on the east side of the north approach to the bridge, or on account of the insufficiency of the railing as it has existed at the bridge and causeway?”

The object of the proposed evidence was to show that actual use had tested the way and had shown it to be safe. If the evidence had met the precise point aimed at, it would have been admissible; but to reach that object the use and experience of others relied upon must have been of a nature to have tested the alleged defect; or, in other words, it must have been a use and test substantially similаr to that of the plaintiff.

In Calkins v. City of Hartford, 33 Conn., 57, the alleged defect was ice covering the entire width of the side-walk, on which the plaintiff slipped and fell while walking over the same; and evidence that other persons had walked over the same рlace without accident or inconvenience was held admissible to show that there was no such ice there, or that it was not dangerous.

This evidence was admitted on the ground that the defect was of such a character as that the attention of the witnesses must have been called to it if it existed, and that their experience ‍‌​​​‌‌​‌‌‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌‌​‌‌‌‌​​‌‌‍of its effect must have been, or would naturally be, substantially the same as that of the plaintiff. And the court distinguished the case in princiрle from the cases of Kidder v. Dunstable, 11 Gray, 342, and Aldrich v. Pelham, 1 Gray, 510, and Collins v. Dorchester, 6 Cush., 396, where in two of the cases, evidence that other teams or carriages passed the place where the plaintiff claimed to have been injured, without accident, and, in the other casе where, in attempting to pass an accident had happened, was held inadmissible.

In the present case the accident occurred in a very peculiar and exceptional manner. The plaintiff’s horse took fright when bеginning to descend the hill, and descended the hill on the left side of the worked way, * and before the carriage reached the bridge the loft wheel was so far over the left edge of the raised highway, that the axle of the wagon struck dirеctly against the end of the railing, thereby causing the injury to the plaintiff.

*43No similar experience or trial of the alleged defect was attempted to be shown ; hut the evidence relied upon merely tended to show that, in the ordinary usе of the highway for many years, no accident had occurred at that place. The same facts could doubtless have been proved if no sign of a railing had ever existed at the place. All persons, previously, had pаssed safely because they had kept the traveled path, and the absence of defects inside the way proved nothing as to defects outside. The court therefore properly rejected the evidence.

2. The next question is, whether the opinions of the “ two professional road-builders of twenty-five years experience in the business,” who “ had seen and examined and described the road and bridge and railing and their surroundings at the place where thе injury happened,” ought to have been received in answer to the four special interrogatories mentioned in the record.

If these witnesses were experts and the subject matter was proper for their opinion, it must be conceded ‍‌​​​‌‌​‌‌‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌‌​‌‌‌‌​​‌‌‍that the evidence ought to have been received in answer to at least three of the questions stated.

A special objection is made to the third inquiry, that it involves the absurd proposition as a defence, “ that through the negligence of the defendants the plaintiff was saved a still more severe injury.”

But we do not so construe the purport and purpose of this question. We think the object was to show that the road was reasonably safe as it wаs, that the safety and convenience of public travel did not require such a railing as the plaintiff claimed should have been erected, because, taking her line of travel, the effect would have been, not to diminish, but to increase the dаnger.

The rule as to experts is, that “ in cases involving questions of science and skill, or relating to some art or trade, experts are permitted to give opinions; the principle embraces all questions except those, the knowledge of which is presumed to be common to all men. So the business which has a pai'ticular class devoted to its pursuit, is an art or trade within *44the rule.” Rochester & Syracuse R. R. Co. v. Budlong, 10 Howard’s Pr. Rep., 289.

Though the rule as stated is. well settled, yet there is often a practical difficulty in applying it to the facts and circumstances of the particular case, especially where the general subject ‍‌​​​‌‌​‌‌‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌‌​‌‌‌‌​​‌‌‍matter, as in this case, is open to the observation of many persons. If this case falls pretty near the line, we think it is сlearly on that side of the line that permits expert testimony.

The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whethеr the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.

In Smith v. Gugerty, 4 Barb., 614, it was held that a mason, as an expei’t, might be asked, “how long it would take to dry the walls of a house, so as to render it fit and safe for human habitation.” Here it is obvious that a great many persons would have somе knowledge of the subject, and it could be plausibly argued that those persons who had prematurely moved into newly constructed houses would be the proper experts, if any. In the case at bar the plaintiff claims that “ persоns who use.roads, and not those who build them, are the proper experts.” ' The similar objection suggested in the case just cited would have a better foundation than it has here, because persons who use roads do not necеssarily have their attention called to points of safety or danger in the construction of the road; and moreover the users of a road do not constitute any recognized class devoted to any business, trade, art or prоfession, connected with such use, which could give any value to their opinions.

But road-builders must of necessity adapt their work to the purposes for which it is intended, to wit, the safety and convenience of public travel, and in so doing thеy must keep in mind all the elements that enter into the question of safety *45and convenience, and thereby they acquire a peculiar knowledge and experience that gives special value to their opinions upon the subject.

The plaintiff further claims that the precise spot to which the questions referred was susceptible of accurate description ‍‌​​​‌‌​‌‌‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌‌​‌‌‌‌​​‌‌‍by measurement and therefore expert testimony was inadmissible. We do not accept this position as correct in this case.

The question whether a highway is so raised above the adjoining ground as to require a railing to make it reasonably safe, might bo so detenfrined in extreme cases, as where the descent from the shoulder of the road to the adjoining ground is very abrupt and great, or where, on the other hand, it is, very slight. But in ordinary cases it could not be so determined. There is no arbitrary rule that so many feet of descent on the side, coupled with sо many feet of width in the traveled way, will make a railing necessary, neither can it be determined by the mere fact that a wagon could be upset by going into the ditch ou the side of the road.

The elements that enter into the question of rеasonable safety are numerous and often difficult to be described; and for this reason it has long been the practice in this state to admit even the opinions of non-experts, founded upon their own personal knowledge аnd in connection with facts stated by them, upon questions “whether a road is or is not in repair, or whether a bridge is sound and safe &c.” Dunham's Appeal from Probate, 27 Conn., 192, opinion by Ellsworth, J., on page 198.

In the case at bar the accident occurred in such a very peculiar manner that we think the opiniоn of experts was more than ordinarily important. The road in its approach to the bridge would seem not to have been raised much above the adjoining ground at the point where the wheel of the plaintiff’s carriage ran off from the shoulder of the road, because the carriage was not thereby overturned although it was going down hill at a rapid rate, and no injury was occasioned until the carriage struck the end of the railing. Under those circumstancеs the question whether any neglect on the part of the town, or any defect in the road or the rail*46ing, caused the plaintiff’s injury, became one of considerable difficulty, in the solving of which the opinion of road-builders of long expеrience might have proved valuable.

8. The only remaining question is, whether under the declaration in this case the court was warranted in receiving the evidence offered by the plaintiff, for the avowed purpose of enhancing the damages, “that she had for many years been employed in a button shop as a button maker,” “ and that in this employment ‍‌​​​‌‌​‌‌‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​​​‌‌‌‌​‌‌​‌‌‌‌​​‌‌‍she had been accustomed to earn from three hundred to three hundred and fifty dollars a year, and that by reasоn of this accident she had been unable to perform this service and had sustained the loss of from three hundred to three hundred and fifty dollars yearly since the accident to the day of the trial.”

The only allegation in the declaratiоn which can possibly refer to this matter is, “ that the plaintiff had been prevented from attending to her ordinary businessbut as the business is not stated, nor any earnings or loss of earnings mentioned, the allegation referred to can only be construеd as intended to characterize the injury, and indicate its extent and permanence in a general way, which amounts simply to a claim for general damages, and lays no foundation at all for proof of special damаges.

The evidence referred to was not intended simply to show the effect and extent of the injury, but to enhance the damages, by showing the loss of earnings in a special employment, requiring some special skill and training, and to which the plaintiff had devoted many years of her life. These damages therefore were not the necessary result of the acts set out in the declaration, and could not be implied by law; but they were special damages, which, in order to prevent a surprise upon the defendant, must be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them at" the trial. This doctrine is unquestionable. 2 Greenl. Ev., § 254; 1 Chitty on Plead., (4th ed.,) 328, 346; Sedgwiсk on Damages, (4th cd.,) 682 to 685; Bristol Manufacturing Co. v. Gridley, 28 Conn., 201; Squier v. Gould, 14 Wend., 159; Baldwin v. Western R. R. Co., 4 Gray, 333.

*47In the last case an action had been brought by the plaintiff, who was a school teacher, against a railroad corporation, to recover damages for a personal injury caused by their lоcomotive engine, and the plaintiff’s occupation and means of earning support were held not admissible in evidence to increase the damages, because not specially averred in the declaration.

A new trial is advised.

In this opinion the other judges concurred; except Pardee, J who having tried the case in the court below, did not sit.