Brooks v. Louisville &. N. R. Co

• Decision Date: 21 November 1923
• Docket Number: (No. 417.)
• Citation: Brooks v. Louisville &. N. R. Co, 119 S.E. 884, 186 N.C. 474 (N.C. 1923)
• Court: North Carolina Supreme Court
• Parties: HILL & BROOKS. v. LOUISVILLE &. N. R. CO. et al.

119 S.E. 884

(186 N. C. 474)

HILL & BROOKS.

v.LOUISVILLE &. N. R. CO. et al.

(No. 417.)

Supreme Court of North Carolina.

Nov. 21, 1923.

Appeal from Superior Court, Union County; Harding, Judge.

Action by Hill & Brooks against the Louisville & Nashville Railroad Company and others.Judgment for plaintiffs, and all defendants, except the Seaboard Air Line Railroad Company, appeal.Reversed, and new trial granted.

There was allegation with evidence that the Louisville & Nashville Railroad Com-pany received a carload of horses and mules to be transported over the lines of the defendants from East St. Louis, Ill., to Oakboro, N. C., and there to be delivered to the plaintiffs, that the animals were in good condition when shipped, and bruised and diseased when delivered, and that their damaged condition was caused by the negligence of the defendants.

The defendants excepted to the introduction of the testimony herein stated:

By Dr. Spencer:

"Q.State whether or not you have an opinion satisfactory to yourself, Doctor, as to whether or not the condition of these animals as you saw it was due to the exposure to the weather, the inclemency of the weather?A.Yes, sir.

"Q.What is your opinion?A.I think those that developed pneumonia had been exposed.Possibly others had too."

By J. D. Love:

"Q.State whether or not in your opinion the condition which you saw these animals in was caused by the treatment—state in what respect you think their condition was caused by the treatment they received?A.By their laying over."

By C. T. Brooks:

"Q.What did the appearance of these horses indicate was the cause of their condition?A.Bad treatment.

"Q.In what respect?A.It seemed to me they had been in an awful bad, nasty place and were awful gaunt and had no great thing in the way of food and water."

The jury found that the alleged injuries were caused by the negligence of all the defendants except the Seaboard, and assessed the plaintiffs' damages at $1,650.The defendants, except the Seaboard appealed.

Yann & Milliken, of Monroe, and John M. Robinson, of Charlotte, for appellants.

Parker & Craig, of Monroe, for appellees.

ADAMS, J.[1] In the law of evidence no principle is more familiar than that which ordinarily excludes the opinion of a nonexpert witness.One who is called to testify is generally restricted to proof of facts within his personal knowledge, and is not permitted to express his opinion concerning matters which the jury are required to decide.Omne sacramentum debet esse de certa scientia.McKelvey says:

"Upon the question of the existence or nonexistence of any fact in issue, whether a main fact or evidentiary fact, the opinion of a witness as to its existence or nonexistence is inadmissible."Evidence, 172.

The principle is abundantly sustained by our decisions.Mullinax v. Hord, 174 N. C. 607, 94 S. E. 426;Deppe v. R. R., 154 N. C 523, 70 S. E. 622;Gilliland v. Board of Education, 141 N. C. 482, 54 S. E. 413;Pump Co. v. R. R., 138 N. C. 301, 50 S. E. 686;Cogdell v. R. R., 130 N. C. 314, 41 S. E. 541.

In Mule Company v. R. R., 160 N. C. 253, 75 S. E. 994, Dr. McMackin, an expert veterinarian, was asked to state his opinion as to the cause of a mule's death, based upon his knowledge and experience and his post mortem examination.He answered, "My opinion is that the mule was jammed up in the car."The court said:

"This evidence was improperly admitted.The question required him to testify not only as to the condition of the mule when he examined him, which was proper, but to go further and give his opinion as to the existence of a fact which was almost, if not quite, the equivalent of the one directly involved...