Daly v. City of Milwaukee

• Decision Date: 03 July 1899
• Citation: 103 Wis. 588,79 N.W. 752
• Parties: DALY v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

103 Wis. 588

79 N.W. 752

DALY

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

July 3, 1899.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Bernard Daly against the city of Milwaukee. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Marshall, J., dissenting.

Carl Runge, for appellant.

J. H. Stover, for respondent.

CASSODAY, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as a fireman when the explosion of the cast-iron elbow took place, and which has just been fully considered in the case of Innes against the city of Milwaukee, decided herewith. On the trial the plaintiff recovered a verdict for $3,000, and from judgment entered thereon the defendant brings this appeal. It is conceded that the plaintiff, as such fireman, was injured by the same explosion. The conclusion reached in the other case makes it necessary to overrule most of the errors assigned in this case. Others only will be considered. Error is assigned because the plaintiff's expert witnesses were allowed to state their opinions as to whether the cast-iron elbow in question was obviously safe or unsafe. Counsel contend that that was one of the ultimate facts for the jury to determine, and hence was improperly submitted to the witness. In support of such contention, counsel rely upon a case in New York,--Harley v. Manufacturing Co., 142 N. Y. 31, 38, 36 N. E. 813. It is well settled in this state that “the opinions of witnesses, which do not relate to matters of science, art, or skill in some particular matter or department of business, are not admissible in evidence.” Luning v. State, 2 Pin. 215;Benedict v. City of Fond du Lac, 44 Wis. 495;Mellor v. Town of Utica, 48 Wis. 457, 4 N. W. 655;Yankee v. State, 51 Wis. 464, 8 N. W. 276;Knoll v. State, 55 Wis. 249, 12 N. W. 369;Baker v. City of Madison, 62 Wis. 137, 22 N. W. 141, 583;Lawson v. Railway Co., 64 Wis. 447, 24 N. W. 618. So it seems to be well settled that the opinions of witnesses which do relate to matters of science, art, or skill in some particular calling are admissible in evidence. Cole v. Clarke, 3 Wis. 323; Wright v. Hardy, 22 Wis. 334; Salvo v. Duncan, 49 Wis. 151, 4 N. W. 1074;Quinn v. Higgins, 63 Wis. 669, 24 N. W. 482;Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674;Smalley v. City of Appleton, 75 Wis. 18, 43 N. W. 826;Stanwick v. Butler-Ryan Co., 93 Wis. 430, 67 N. W. 723. See, also, Lang v. Terry, 163 Mass. 138, 39 N. E. 802;Betts v. Railway Co. (Iowa) 60 N. W. 623. Of course, such opinions must be based upon proper questions; but they are not objectionable merely because they cover one of the ultimate facts to be determined by the jury. As stated by Mr. Justice Marshall in a recent case: “Where evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case. * * * The rule is that experts are not to decide issues of fact; hence all questions calling for opinion evidence must be so framed as not to pass upon the credibility of any other evidence in the case, else it will usurp the province of the...