Illinois Cent. R. Co. v. Smith

• Decision Date: 20 April 1904
• Citation: 70 N.E. 628,208 Ill. 608
• Parties: ILLINOIS CENT. R. CO. v. SMITH.
• Court: Illinois Supreme Court

208 Ill. 608

70 N.E. 628

ILLINOIS CENT. R. CO.

v.SMITH.

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, Third District.

Action by Charles Smith against the Illinois Central Railroad Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court, defendant appeals. Reversed.

J. S. Wolfe and G. W. Gere (John G. Drennan, of counsel), for appellant.

Ray & Dobbins, for appellee.

HAND, J.

This is an action on the case, commenced in the circuit court of Champaign county by appellee against the appellant to recover damages for a personal injury sustained by appellee while in the employ of the appellant as a section hand and engaged in dumping ‘gondola’ cars loaded with ballast. The declaration contained one count, and the general issue was pleaded, and the jury returned a verdict in favor of the appellee for $3,000, upon which, after overruling a motion for a new trial, judgment was rendered, which judgment has been affirmed by the Appellate Court for the Third District, and a further appeal has been prosecuted to this court.

The appellee, with one Garretson, was dumping cars. This was done by getting upon the platform at each end of the car and operating a lever. After they had dumped several cars, appellee got up to dump another car, and while he was on the platform the train was violently jarred by the shutting down of the locomotive, and his left foot, while he was attempting to save himself from falling, was in some manner caught between the coupling machinery of the cars and crushed. The appellee testified that when the jar occurred he was in the act of stepping from the car that had just been unloaded to the platform of an adjoining loaded car; that he was thrown backward, and, to prevent himself from falling, caught hold of the brake of the car he was facing and threw one foot back to the car he had just left; that in the platform of that car, over the drawbar and coupling machinery, and just back of where the ‘deadwood’ should have been, there was a hole mashed through the planks and a part of the sill which supported them; and that his foot went through the hole, and down upon the drawbar beneath the platform, and was injured. Three witnesses on behalf of the appellant testified they reached appellee before he was released, and that his foot was caught between the lip of the drawbar and the deadwood, and that his foot was not in a hole. Five witnesses testified they examined the car on which appellee was injured, immediately after the injury, and that the deadwood was intact and there was no hole in the platform, and two witnesses testified they inspected the cars of the train, of which the car in question formed a part, upon the morning of the injury, and that they were in good repair and there were no holes in the platforms thereof.

Appellee sought to support his testimony, which was otherwise uncorroborated, by the testimony of the two physicians who treated him for the injury. Dr. J. A. Huffman, who saw appellee immediately after the injury, over the objections of the appellant, testified in part as follows: ‘Q. Describe, if you can, how the injury must have been made-whether with a flat surface or not, or a round surface, or an uneven surface. A. My impression is, it was done by some projection penetrating the bottom of the foot. Q. A. By the foot being caught between A. By the foot being caught between two projections-something that would penetrate the bottom of the foot. It would be uneven. It could not have been flat. Q. I am asking your opinion as to what kind of surface would cause the twisting of the foot in that way-an even or an uneven surface? A. An uneven surface.’ Dr. Z. E. Matheny, who was called to see appellee the day of the injury, also testified, over the objection of the appellant, in part as follows: ‘Q. Describe what kind of a surface that injury could have been inflicted by-whether an even or an uneven surface. A. Well, judging from the appearance of the wound, I would judge it was an uneven surface that caused it. Q. You may state, after your examination of the foot and seeing its twisted condition, if you have any opinion as to how it was twisted into that shape. A. It could have been caught between two uneven surfaces and twisted around that way; could not have been inflicted by flat and even surfaces.’ Appellee testified that his foot was caught between two uneven surfaces, and all of the appellant's evidence tended to show that his foot was caught and crushed between two even surfaces. The evidence on that point was directly contradictory.

The first question, therefore, presented for consideration, is, was the testimony of the physicians above set forth competent evidence to be received in corroboration of that of appellee? Three objections are urged against the competency of said evidence: First, that the matter involved no particular science, skill, or knowledge in order to formulate the opinion given; second, that the matter could have been concisely and lucidly described to the jury; and, third, that the testimony, though in form an opinion, was in reality the statement of the very fact the jury was to determine. It seems to us clear, if the physicians who were called had confined their evidence to a description of the condition of the foot of appellee as they found it after the injury, the jury, from such evidence, would have been in as good condition as they to determine whether the injury had been caused by the foot being crushed between even or uneven surfaces, and that to permit the witnesses to testify the injury was caused from the foot being caught between two uneven, and not two even, surfaces, was to permit them to usurp the province of the jury, and to testify to the facts which were to be determined by the jury, which all the authorities agree is not permissible.

In Hellyer v. People, 186 Ill. 550, 58 N. E. 245, which was an indictment for murder, the trial court permitted a number of physicians to give their opinions upon the question as to whether or not the wounds found upon the body of the deceased were such as would likely have been inflicted upon a person, while living, by being struck by a railroad train running at the rate of 35 miles per hour. This court held the evidence incompetent, and on page 558, 186 Ill., and page 248, 58 N. E., said: ‘The subject of the proposed injury [inquiry] was a matter of common observation, upon which the lay or uneducated mind is capable of forming a correct judgment. In regard to such matters experts are not permitted to state their conclusions. In questions of science their opinions are received, for in such questions scientific men have superior knowledge and generally think alike. Not so in matters of common knowledge. Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. ‘Whenever the subject-matter of inquiry is of such a character that it may be presumed to lie within the common experience of all men of common education moving in the ordinary walks of life, the rule is that the opinions of experts are inadmissible, as the jury are supposed, in all such matters, to be entirely competent to draw the necessary inferences from the facts testified of by the witnesses.’ Rogers on Expert Testimony, § 8; Ohio & Mississippi Railway Co. v. Webb, 142 Ill. 404, 32 N. E. 527. As a general rule, the opinions of witnesses are not to be received in evidence merely because such witnessesmay have had some experience or greater opportunities of observation than others, unless such opinions relate to matters of skill and science. Robertson v. Stark, 15 N. H. 109; Marshall v. Columbian Ins. Co., 7 Fost. (N. H.) 157; Protection Ins. Co. v. Harmer, 2 Ohio St. 452,59 Am. Dec. 684;People v. Bodine, 1 Denio, 281;Westlake v. St. Lawrence, etc., Ins. Co., 14 Barb. 206;Smith v. Gugerty, 4 Barb. 614; Folkes v. Chudd, 3 Doug. 157; 1 Smith's Lead. Cas. (5th Am. Ed.) 630; Daniels v. Mosher, 2 Mich. 183. An expert cannot be asked whether the time during which a railroad train stopped was sufficient to enable the passengers to get off (Keller v. Railroad Co., 2 Abb. Dec. 480), or whether it was prudent to blow a whistle at a particular time (Hill v. Railroad Co., 55 Me. 438, 92 Am. Dec. 601); nor can a person conversant with real estate be asked respecting the peculiar liability of unoccupied buildings to fire (Mulry v. Insurance Co., 5 Gray, 541, 60 Am. Dec. 380). The opinions of witnesses should not be asked in such a way as to cover the very question to be found by a court or jury. Chicago & Alton Railroad Co. v. Springfield & Northwestern Railroad Co., 67 Ill. 142. Where the matter inquired about requires no special knowledge, and may be determined by a jury upon a sufficient description of the facts in regard to it, it is not proper to receive the testimony of experts. Hopkins v. Indianapolis & St. Louis Railroad Co., 78 Ill. 32;City of Chicago v. McGiven, 78 Ill. 347;Pennsylvania Co. v. Conlan, 101 Ill. 93.'

In Chicago & Alton Railroad Co. v. Lewandowski, 190 Ill. 301, 60 N. E. 497, which was a personal injury case, the appellant called a number of railroad men as expert witnesses, who testified that in their judgment a person could not be struck by a locomotive engine, pulling a train of freight cars and running at the rate of 25 or 30 miles an hour, and survive, while the appellee called a number of medical men, who testified that in their opinion a person could be struck by a train moving at said rate of speed, and thrown that distance, or even a greater distance,and live. On page 309, 190 Ill., and page 500, 60 N. E., the court said: ‘It is said it was error to allow the medical witnesses to give expert testimony upon such subject, as it called for their opinions upon subjects that were outside of their profession. We think the record shows that the witnesses for the appellee were as well qualified to speak upon the subject as those called by the appellant....