Auberle v. City of McKeesport

• Decision Date: 04 January 1897
• Docket Number: 46
• Citation: Auberle v. City of McKeesport, 179 Pa. 321, 36 A. 212 (Pa. 1897)
• Parties: Pauline Auberle v. City of McKeesport, Appellant
• Court: Pennsylvania Supreme Court

36 A. 212

179 Pa. 321

Pauline Auberle v. City of McKeesport, Appellant

No. 46

Supreme Court of Pennsylvania

January 4, 1897

Argued October 28, 1896

Appeal, No. 46, Oct. T., 1896, by defendant, from judgment of C.P. No. 2, Allegheny Co., Jan. T., 1894, No. 95, on verdict for plaintiff. Reversed.

Trespass for personal injuries. Before EWING, P.J.

The facts appear by the opinion of the Supreme Court.

At the trial James Stratton was asked this question:

"Q. State whether, in view of the examination that you made of the bridge on the day after the accident and since that time before the guard rails were put up, as you say, in view of your knowledge of the locality in the last forty years whether, in your opinion, the bridge was dangerous or otherwise."

By the Court: Since ruling on the objection to a similar question asked Mr. Corry, court has been shown the case of McNerney v. The City of Reading, 150 Pa. 611. The ruling in that case seems to cover the question, and although it is in my judgment directly in the teeth of the principles laid down for the government of the court admitting the opinion of witnesses in other cases, nevertheless it rules this case, and in this case the witness has shown much more to entitle him to give an opinion than in the other. The objection is overruled and bill sealed for defendant.

And the ruling in relation to the exclusion of the question to Mr. Corry is withdrawn, and the exception in that case is overruled, and the plaintiff will be allowed to ask the question.

Objection and bill sealed for defendant.

Captain Corry having been recalled, testified:

"Q. Captain, having stated that you made an examination of the bridge the next morning after the accident, that you have seen it different times since then, state, in your judgment as to whether that bridge, at the time of the accident, was or was not a safe place for persons passing over it. A. I would not regard that as a safe bridge at night in the absence of hand rails." [1]

The court submitted the question of plaintiff's contributory negligence to the jury.

Verdict and judgment for plaintiff for $2,500. Defendant appealed.

Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2) in submitting the question of plaintiff's contributory negligence to the jury.

Judgment reversed.

W. B. Rodgers, with him T. C. Jones, for appellant, cited as to the admission of the opinion of witnesses: Graham v. R.R., 139 Pa. 149; Kraut v. R.W. Co., 160 Pa. 327; Dooner v. Canal Co., 164 Pa. 33.

Cited as to contributory negligence: Monongahela v. Fischer, 111 Pa. 9.

J. M. Stoner, with him F. H. Guffey, for appellee, cited as to the opinion of witnesses: Beatty v. Gilmore, 16 Pa. 463; Phila. & Reading R.R. v. Ervin, 89 Pa. 71; Graham v. Pa. Co., 139 Pa. 149; McNerney v. Reading, 150 Pa. 611; Kraut v. Ry., 160 Pa. 327; Kitchen v. Union Township, 171 Pa. 145.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

The learned judge, manifestly against his own judgment, admitted the opinions of witnesses that the bridge where the accident took place was dangerous. The facts were not in dispute on this point; the bridge was the full width of the road way, thirty-three feet; it was only from fifteen to eighteen feet long, and four or five feet above the bed of the run. The situation was capable of full and exact description, and whether the absence of a guard rail under such circumstances made the bridge dangerous for ordinary travel was a matter on which every juror was as competent to form a sound individual judgment as any of the witnesses. The admission of opinions of the latter was therefore error.

The rule on this subject is that where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, the description by the witness must of necessity be allowed to be supplemented by his opinion, in order to put the jury in position to make the final decision of the fact. But where the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or other, are not admissible. The rule in this form was settled by Graham v. Penn. Co., 139 Pa. 149, and has not been departed from. Whether its application to existing facts in subsequent cases has always been correct, is a matter on which opinions may naturally differ, because as was said in that case quoting Chief Justice SHAW in N.E. Glass Co. v. Lovell, 7 Cush. 321, "there is extreme difficulty in laying down any rule precise enough for practical application, and the only proper course is to keep the principle steadily in view, and apply it according to the circumstances of each case."

The learned judge below considered the principle as modified by some of the later cases, and therefore, as already said against his own opinion, admitted the evidence. In so doing however he gave the cases too broad an effect. They were not intended to introduce any modification of the rule in Graham v. Penn. Co. In McNerney v. Reading City, 150 Pa. 611, the case principally relied on at the trial, the objection made was not to the nature of the evidence but to the qualifications of the witness as an expert. Our Brother McCOLLUM after referring to this fact, cited Graham v. Penn. Co., and quoted as applicable to the case in hand, what is there said of Beatty v. Gilmore, 16 Pa. 463, that it was "not clear that the mere description of the place would convey to the jury an adequate idea of it with reference to the danger." ...