Bain v. Cushman
| Citation | 15 A. 171,60 Vt. 343 |
| Parties | ANDREW BAIN v. A.J. CUSHMAN |
| Decision Date | 12 September 1888 |
| Court | United States State Supreme Court of Vermont |
JANUARY TERM, 1888
TRESPASS on the case for the alleged negligence and unskillfulness of the defendant as a physician and surgeon in his professional treatment of the plaintiff while a patient of the defendant, whereby the plaintiff was injured. Plea general issue. Trial by jury, December Term, 1886, TAFT, J presiding. Verdict for the plaintiff.
The judgment is reversed and cause remanded.
W W. Rider and Hard & Cushman, for the defendant.
The error in allowing the question to be put is most obvious.
The question put to the plaintiff upon his examination as a witness in his own behalf called for an expression of his opinion as to the damage he had sustained in consequence of the defendant's negligent and unskillful professional treatment of him as his physician and surgeon. The answer given by him was intended to be and was no doubt treated as evidence upon the question of the damages that the plaintiff was entitled to recover; thus, leaving the damages to be estimated upon opinion given rather than upon facts that were put in evidence.
It is an elementary rule in the law of evidence that opinions other than those of experts are inadmissible as evidence. It is not claimed that the question was admissible unless it came within some exception to that rule. It is claimed that the facts and circumstances which led the mind of the witness to a conclusion were incapable of being detailed and described so as to enable any one but himself to form an intelligent conclusion from them, and that those circumstances brought the question within a well-recognized exception to the above rule. The case of Cavendish v. Troy, 41 Vt. 99, is relied upon as authority in support of that claim. But in that case it is said that where all the pertinent facts can be sufficiently detailed and described, and where the triers are supposed to be able to form correct conclusions without the aid of opinion or judgment from others, no exception to the rule is allowed. Here the witness might have detailed and described all the facts bearing upon the question of the amount of damage he had sustained; and when they were thus detailed and described to the jury there is no reason apparent why the jury would not have been able to form a correct conclusion and judgment without the aid of the opinion of the witness.
So...
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