60 Iowa 429 | Iowa | 1883
1. The plaintiff and her husband, who is a farmer, reside in the vicinity of Ottumwa. On the morn
“I saw the woman coming across Main street from Hill’s grocery; she had some chairs and packages in her arms; she put the chairs in the wagon and got in; she sat on a chair back of the seat in the wagon.
When the horses started to go off, she fell out. The horses started quick, kind of jumped. I thought I saw a man standing there sprinkling the street with a hose; he was standing on the sidewalk at the edge of the building, sprinkling down the sidewalk towards the alley; he was sprinkling water near the team, all around them; he commenced sprinkling just a little before the accident happened.
She fell out at the same time the horses jumped. The horses in starting gave a quick motion. She fell out right over the sidewalk. Some packages she had in her arms fell out with her. The chair did not fall out.
Question — Now I would like to have you state what it ■ was that made the horses jump.
Objected to-by the plaintiff because incompetent, and it calls for a conclusion of the witness. The objection was sustained by the court, and the defendant duly excepted to the ruling at the time.
Mrs. McGiiire, another witness, stated 'that she was at the window with Mrs. Ulrich, and after describing the position of the wagon and the plaintiff’s position therein, she was asked this question: “You can describe, after she got in and sat down on the chair, how the accident occured as you now remember it. Give it in your own way — after she sat down.”
“There was some one standing at those steps near the door sprinkling the streets with the hose^ and the
Objection was made to “what the witness said about the horses becoming frightened, because it is incompetent, being an opinion of the witness.” The objection was sustained. We think these rulings of the court were erroneous. It is true that the dividing line between what is a.fact and what is an opinion is not and cannot be very clearly defined. But it surely is competent for a witness to state whether the horses were frightened by a stream of water thrown upon or around them, or by the escape of steam from an engine, or by being set upon by a dog, or the like. The observation of the witness as to cause and effect is a fact which he may state to the jury. Upon a question like this, the discharge of the water from the hose and its effect upon the horses appears to us to be a compound of fact and opinion. To hold that it is incompetent would limit and hamper the introduction of evidence in a manner not contemplated by any rule of law of which we have any knowledge. If it be the law that a witness, not an expert, may not under any circumstances give an opinion, the statement of these witnesses that the horses were frightened would not be admissible. But the rule is not thus to be applied. It is competent for a witness to testify to his conclusion, when the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time.- It appears to us that the subject-matter — the alleged fright of the horses in this case — was of the character just described. A witness may see a team frightened, and may state the fact that water was thrown from a hose upon or near the team, and he may describe how and when it was thrown, and yet he cannot put the jury in his place in regard to the facts, without stating his conclusion as to the effect of the throwing of the water.
A witness may state his Opinion in regard to sounds, their
This instruction was refused. ¥e think this, or some other explicit instruction applicable to this view of the facts of the case, should have been given. Where an obstruction is in the street in plain’view of the driver of a vehicle, and
■ It is no answer to this measure of diligence and care to argue that the driver’s attention was taken up with looking above the ground to direct his team. Human vision is not so narrow that the driver of a team may not take in the whole of his surroundings, including the team and every ob.struction which may be in the line of the wheels of his vehicle.
In our opinion, the jury should have been expressly instructed that if, when the team was started by the driver, the stone (if there was one) was in plain view, and there was nothing to divert his attention from seeing it, it was his duty to have seen and avoided it,.and if he did not do so, the plaintiff could not recover.
REVERSED.