Easler v. Southern Ry. Co.

• Decision Date: 26 February 1901
• Citation: 37 S.E. 938,59 S.C. 311
• Parties: EASLER et al. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

37 S.E. 938

59 S.C. 311

EASLER et al. v. SOUTHERN RY. CO.

Supreme Court of South Carolina

February 26, 1901

Appeal from common pleas circuit court of Lexington county; W. C Benet, Judge.

Action by Nancy Easler and another against the Southern Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

McIver C.J., dissenting.

B. L Abney and E. M. Thompson, for appellant.

G. T Graham and P. H. Nelson, for respondents.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff Mrs. Nancy Easler in alighting from defendant's train of cars at Lexington, S.C. The complaint alleges that the said Nancy Easler on the 27th day of March, 1899, purchased a ticket from Columbia to Lexington, and on that day, with her baggage and two infant children, of the ages, respectively, of 1 and 4 years, boarded the passenger train of the said defendant. The fifth paragraph of the complaint contains the following allegations: "That upon reaching Lexington, S. C., a station along said railroad, the said train stopped; and the plaintiff Nancy Easler, who was incumbered with her said infant children and baggage, immediately attempted to get off said train, and reached the platform of one of the cars of said train, and while descending the steps of said car, and before she could alight therefrom, the conductor of said train (being the agent and servant of the defendant, and acting within the scope of his authority as agent and servant), without rendering the plaintiff any assistance in getting off of said train, and in utter disregard of her rights, negligently, wantonly, and willfully caused said train of cars to move, and jolt, jerk, and throw the plaintiff Nancy Easler, who was incumbered with her said infant children, down upon the ground with great force and violence, inflicting painful serious wounds on her neck, side, left wrist, and arm, thereby causing her great pain and suffering, and rendering her unfit for business." The complaint alleged that she was damaged in the sum of $1,950. The defendant answered, denying each and every allegation of the complaint, and pleading the contributory negligence of the said plaintiff. The jury rendered a verdict in favor of the plaintiff for $1,500. The defendant appealed, upon exceptions, the first of which is as follows: "(1) Excepts because the presiding judge erred in refusing to allow the witness for defendant, Dr. O. J. Harris, to answer the following question: 'Q. From the number of passengers that were in there, had the passengers sufficient time to get off, if they had gotten up when the train stopped, and made their way out?' Whereas it is submitted that it was competent for the witness to express his opinion as to whether there was a sufficient time, or not, for passengers to leave the train; said witness having previously given the facts upon which such opinion would be based."

The general rule in regard to opinion evidence is thus stated in 7 Am. & Eng. Enc. Law (1st Ed. p. 493): "Opinions are never received if all the facts can be ascertained and made intelligible to the jury, or if it is such as men in general are capable of comprehending and understanding. The ordinary affairs of life cannot be the subject of expert testimony." See, also, 12 Am. & Eng. Enc. Law (2d Ed.) pp. 488, 489. In the case of Graham v. Pennsylvania Co. (Pa.) 21 A. 151, 12 L. R. A. 293, the court uses this language: "In several classes of questions the line between the witness' judgment or opinion and his affirmation of a fact is so indistinct that it cannot be marked out in practice. Such are questions of identity of persons or things, of the lapse of time, *** etc. In all of these, however positively the witness may affirm facts, what he says is, after all, his opinion, but so blended with knowledge and recollection that the line where opinion ends and fact begins cannot be distinguished. Hence both must be admitted or both excluded, and to do the latter is often to shut out the only light the case admits of." The court proceeds to quote from the case of Clifford v. Richardson, 18 Vt. 620, as follows: "When all the pertinent facts can be sufficiently detailed and described, and when the triors 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." In the case of Com. v. Sturtivant, 117 Mass. 122, the court says: "The exception *** includes the evidence of common observers, testifying to the results of their observations made at the time, in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to the jury." In commenting on the language, the court, in the case of Graham v. Pennsylvania Co., supra, says: "But, as necessity is the ground of admissibility, the moment the necessity ceases the exception to the general rule that requires of a witness facts and not opinions ceases, also. Hence, whenever 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." In Glass Co. v. Lovell, 7 Cush. 321, Shaw, C.J., in behalf of the court, says: "The principle upon which this evidence is admissible is clear and entirely just. In applying evidence which does not go directly to the fact in issue, but to facts from which the fact in issue is to be inferred, the jury have two duties to perform. First. *** To ascertain the truth of the fact to which the evidence goes, and thence to infer the truth of the fact in issue. This inference depends on experience. *** Now, when this experience is of such a nature that it may be presumed to be within the common experience of all men of common education, moving in the ordinary walks of life, there is no room for the evidence of opinion, and it is for the jury to draw the inference." The case of State v. Summers, 36 S.C. 479, 15 S.E. 369, shows that opinion evidence is based on necessity, and is not admissible, as a general rule, when the facts can be reproduced before the jury in such a way as to show the condition of things upon which the opinion of the witness was based. While the foregoing is a correct statement of the general principle as to opinion evidence, this court, in accordance with the weight of authority, has recognized as one of the exceptions when the testimony relates to the lapse of time. Ward v. Railway Co., 19 S.C. 521. In the case last mentioned an action was brought for the recovery of damages alleged to have been sustained by injury to the plaintiff caused by the negligence of the driver of defendant's car in not giving her proper time to free herself and get out of the way of the car. During the progress of the trial several witnesses who were present and saw what occurred were asked by defendant's counsel as follows, to wit: To John McPherson: "Whether the lady was or was not far enough from the car to allow it to go on without throwing her down." To W. E. Vincent: "Was she a sufficient distance from the car to avoid the accident?" And to Philip Fogarty: "You think she was given plenty of time to get off and move away, except for the drays?" These questions were objected to as calling for the opinions of the witnesses. The presiding judge directed the question to be put in this form. "Whether, as matter of fact, she had time to get clear of the car." Mr. Chief Justice Simpson, as the organ of the court in the foregoing case, says: "The other question raised is as to the competency of certain questions propounded to the witnesses, which were objected to by appellant on the ground that they called for opinions, merely, and not facts. It is a general rule of evidence that opinions of witnesses are not competent, but to this there are several exceptions. For instance, experts may give opinions; and even ordinary witnesses, after stating the facts upon which their opinions are founded, may also state their opinions resting on the facts. Seibles v. Blackwell, 1 McMul. 56. And then there are many matters in reference to which opinion is the only testimony of which they are susceptible. See the recent case of Jones v. Fuller, 19 S.C. 66, in which McIver, J., fully discusses such cases. Time, distance, velocity, form, size, age, strength, heat, cold, etc., are subjects of this character. Whart. Ev. p. 490, note. The ground upon which opinions are allowed in such cases, says Mr. Wharton, is that, from the nature of the subject, it cannot be stated in such language as will enable persons not eyewitnesses to form an accurate judgment in regard to it." After citing other authorities, the court concluded as follows: "Under the principle upon which these cases were decided, we think the question propounded here was competent, especially as the witnesses were present when the accident occurred, and were speaking from the facts as they occurred within their sight and under their immediate observation." The first exception is sustained.

The second, third, and fourth exceptions are as follows "(2) Excepts because the presiding judge erred in refusing to allow Dr. J. J. Wingard, a witness called for the defendant, to answer the following question: 'Q. As a medical expert, having observed what I have just mentioned, what do you say as to whether that fall produced her condition as you saw it on the stand?' It is submitted that such question was competent, the witness having heard the plaintiff Mrs. Easler testify, having observed her upon the stand, and having made a physical examination of her, thus having expressed and before him the facts upon which his opinion would be based; and the defendant...