Keyes-Marshall Brothers Livery Co. v. St. Louis & Hannibal Ry. Co.
| Decision Date | 29 March 1904 |
| Citation | 80 S.W. 53,105 Mo.App. 556 |
| Parties | KEYES-MARSHALL BROTHERS LIVERY COMPANY, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. H. W. Johnson, Judge.
Towards end of September, 1902, in Bowling Green, Mo., the plaintiff purchased a pair of horses for the price of six hundred dollars; at time of their purchase the animals were gentle and well broke, they had been driven in single and double harness by their former owners and by members of their families. When shipped to the purchaser, consigned to St Louis over defendant's railroad, the horses were started in good condition, newly shod, their legs bandaged and they were tied separately at opposite ends of the car in proper condition for safe transportation. On the journey, within four miles of the town of Gilmore, while the train was running at a speed estimated at fifteen or twenty miles per hour, the car containing them was derailed, thrown down an embankment, and overturned, requiring the animals to be extricated through the roof, sawed open for that purpose. They were then led to Gilmore, and placed in a livery stable till the following afternoon, when they were reshipped and delivered to respondent at St. Louis. When removed from the wreck, their shoes were off, the bandages torn and down, and the animals scratched and bruised; upon arrival in St. Louis they were well cared for, blanketed and turned into box stalls, where they were permitted to remain without use for several days. After unavailing effort to drive them, they were returned to the stable, and after further interval of disuse, when taken out both were nervous and susceptible to fright at slight causes; one, the near horse of the team, was found distressed, unable to extend himself and could be driven but a short distance, and within a month dropped dead when about to be put in harness; the off horse was returned by boat to the firm which sold him at Bowling Green, and showed such disposition to run away that after trial he was sold without guaranty for $ 112.50 at auction. In developing the proof for respondent, a veterinary expert was permitted to give his opinion, basing it upon the evidence he had heard introduced, as to what was the trouble with the team, and to state the condition of the horses was attributable to the result of the casualty they had experienced in transit.
Judgment reversed and cause remanded.
Geo. A Mahan and J. D. Hostetter for appellant.
(1) The court erred in permitting the alleged expert, E. B. Shaw, to give his opinion as to what was the trouble with the horses basing it upon the evidence in the case. This was in effect usurping the province of the jury, and also involved the process of allowing the expert to pass upon the disputed points of the testimony, and to arrive at a conclusion from a consideration of disputed facts. An expert can not be permitted to give his opinion on the whole case or "from the evidence in the case" as that would necessarily include a determination of the facts and would invade the province of the jury. Lawson on Expert & Opinion Ev. (2 Ed.), 172; State v. Palmer, 161 Mo. 174; Tuizley v. Cowgill, 48 Mo. 298; Page v. New York, 10 N.Y.S. 826; Connelly v. Railway, 60 Hun 495, 15 N.Y.S. 176; Fairchild v. Bascomb, 35 Vt. 398; Graney v. Railway, 157 Mo. 682. (2) An expert should not be asked questions which require him to draw inferences or conclusions of fact from the testimony, or to pass on the credibility of the witnesses or to decide as to the weight of the evidence, or to reconcile conflicting evidence. Rogers' on Expert Testimony, 61: "The proper method, therefore, of obtaining the opinion of the expert upon the facts brought out at the trial, and which he has heard, is to state the evidence to him and ask him his opinion upon such hypothetical case, and not to ask him what his opinion is upon the evidence as he has heard it." McGuire v. Railroad, 51 N.Y.S. 1075; Key v. Thompson, 2 Hannay (N. B.) 224; Briggs v. Railway, 52 Minn. 36, 53 N.W. 1019. (3) The evidence does not show a legitimate inference that the condition of these horses resulted from the wreck. At most it is a bare conjecture, hence defendant is not liable and its instruction No. 1 should have been given. Plaintiff can not recover and the judgment should be reversed. Smart v. Kansas City, 91 Mo.App. 586; Smillie v. St. Bernard Dollar Store, 47 Mo.App. 406; Smith v. First Nat. Bank, 99 Mass. 612; Searles v. Railroad, 101 N.Y. 661; Cotton v. Wood, 8 C. B. (N. S.) 568. When the state of the evidence is such as to leave the result of the accident to be determined only by conjecture or surmise, the plaintiff must fail. Bond v. Smith, 113 N.Y. 378; Pauley v. Steam Co., 131 N.Y. 90; Linkhouf v. Lombard, 137 N.Y. 417.
P. H. Cullen and Tapley & Fitzgerrell for respondent.
(1) The manner of the examination of Dr. E. B. Shaw, if error, was harmless, as there was no conflict in the testimony. State v. Prewitt, 175 Mo. 228; State v. Palmer, 161 Mo. 174. (2) The appellant can not complain of the error if any in the examination of Dr. E. B. Shaw, as its counsel by the questions asked on cross-examination adopted the error, if any, of respondent. Goss v. Railroad, 50 Mo.App. 623. (3) If there had been a sharp conflict in the evidence as to the cause of the damages to the team of horses and appellant had not adopted the error if any, in its cross-examination of witness E. B. Shaw, there might have been some contention as to its objection to the questions asked the expert, but under the evidence adduced at the trial, it was not error. (4) However, said instruction was properly refused. There was ample testimony to submit the cause to the jury. Doan v. Railroad, 38 Mo.App. 408; Home v. Express Co., 48 Mo.App. 179; Same v. Same, 66 Mo.App. 486; Cash v. Railroad, 81 Mo.App. 109; Davis v. Railroad, 89 Mo.App. 140; Pacific Express Co. v. Emerson, 74 S.W. 132; Peay on Freight Carriers, 253.
REYBURN, J. (after stating the facts as above.)
1. The toleration of the mere expressions of opinions of skilled witnesses as lawful proof is a conspicuous exception to the fundamental law of evidence that the triers of controversies should form their conclusions from facts detailed by witnesses, and not from mere opinion of any witness, and the admission of this class of testimony should be guarded rigidly within its proper limits, and the conditions established by law under which such testimony is made admissible should be scrupulously regarded. In the employment of such proof, the rule is well settled that such witnesses should not be permitted to assume the province or duties of the triers of fact by expression of individual opinions upon the issues of fact on trial. As expressed by one writer upon the subject of expert testimony, an expert should not be interrogated in such manner as to...
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