Indiana, Bloomington and Western Railway Co. v. Hale

• Decision Date: 23 January 1884
• Docket Number: 10,867
• Parties: The Indiana, Bloomington and Western Railway Company v. Hale
• Court: Indiana Supreme Court

93 Ind. 79

The Indiana, Bloomington and Western Railway Company v. Hale

No. 10,867

Supreme Court of Indiana

January 23, 1884

From the Marion Circuit Court.

Judgment reversed at the appellee's costs, with instructions to the court below to sustain the appellant's motion for a new trial, and for further proceedings.

C. W Fairbanks, for appellant.

T. S Adams, for appellee.

OPINION

Hammond J.

Complaint in two paragraphs by the appellee against the appellant to recover damages for killing appellee's horse. The first paragraph of the complaint charged that the railroad, at the place at which the horse entered, was not securely fenced in. The second paragraph was based upon the alleged negligence of the appellant's employees.

The venue was changed, on the the appellant's application, from the Hendricks Circuit Court, where the action was commenced, to the court below. Upon issues joined, there was a trial by the court, resulting in a finding and judgment for the appellee, over the appellant's motion for a new trial and exceptions. The overruling of the appellant's motion for a new trial is the only error properly assigned in this court.

The evidence tended to show that the animal was killed by a freight train on the appellant's railroad, in Raintown. The principal contention was whether the railroad could properly have been fenced at the place at which the horse entered upon the track and was killed.

A witness for the appellee, testifying as to the place in question, was asked by appellee's counsel this question:

"I will ask you if there was a fence on the north side of the railroad right of way, would it interfere with the rights of the company in any way?" The witness answered, "No, sir."

Another witness was asked by the appellee's counsel this question:

"If there had been a fence there, would it have interfered with the rights of the company in any way?"

The witness replied: "No, sir, it would not interfere with anything; for even if it was going to be used for anything, there is no time in the season a person could go over it."

The appellee's counsel asked another witness the following question:

"I will ask you, in your opinion, would a fence between this vacant lot and the railroad right of way, extending from the lot on the west to the lots on the east, interfere with the rights of the company?"

The question was answered: "It would be no disadvantage to the railroad company or to the public."

Another witness was asked by the appellee's attorney:

"Could it (the railroad) have been fenced there without any inconvenience to the railroad company?"

The answer was: "Yes, sir."

The contexts show that the foregoing questions and answers had reference to the place on the appellant's railroad where the injury complained of occurred. To each of the above questions, before it was answered, the appellant made proper objections, but these were overruled, exceptions to the rulings were taken, and each of the witnesses answered as stated.

The general rule is that a witness must not give his opinion, but must testify as to facts. To this rule there are some exceptions. The opinion of an expert in any art, science, trade, profession or mystery, may be given where it is proper for the decision of a question relating to the issues in a case. There are many cases in which opinions of witnesses, who are not experts, may be taken. It is difficult, if not impossible, to lay down a rule applicable to all cases, to say when and under what circumstances the opinion of a witness may or may not be competent. In Concord Railroad v. Greely, 23 N.H. 237, the court said: "Upon subjects of general knowledge, which are understood by men in general, and which a jury are presumed to be familiar with, witnesses must testify as to facts alone and the jury must form their opinions. In such cases the testimony of witnesses, as experts merely, is not admissible."

In Commonwealth v. Sturtivant, 117 Mass. 122 (19 Am. Rep. 401), it was said: "The exception to the general rule that witnesses can not give opinions, is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning; but includes the evidence of common observers, testifying to the results of their observation made at the time in regard to common appearances or facts, and a condition of things which can not be reproduced and made palpable to a jury. Such evidence has been said to be competent from necessity, on the same ground...