St. Louis, I. M. & S. Ry. Co. v. Yarborough

• Decision Date: 19 November 1892
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. YARBOROUGH.
• Court: Arkansas Supreme Court

20 S.W. 515

ST. LOUIS, I. M. & S. RY. CO. v. YARBOROUGH.

Supreme Court of Arkansas.

November 19, 1892.

Appeal from circuit court, Nevada county; CHARLES E. MITCHEL, Judge.

Action by W. E. Yarborough against the St. Louis, Iron Mountain & Southern Railway Company to recover damages to plaintiff's crops resulting from an overflow of his land, which overflow, it was alleged, was caused by an embankment erected and maintained by defendant. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. Scott & Jones, for appellee.

MANSFIELD, J.

1. The damage which the plaintiff sued to recover was not original, in the sense that it resulted necessarily from the erection of the railway embankment. But after that structure was completed the injury complained of was still entirely uncertain and contingent and such as might never happen. In this respect the case is similar to Railway Co. v. Biggs, 52 Ark. 240, 12 S. W. Rep. 331, and according to the rule there laid down the statute of limitations did not begin to run until the crops were destroyed. Troy v. Railroad Co., 23 N. H. 83. The defendant's tenth instruction was not therefore applicable to the facts, and the court was right in refusing to give it.

2. The opinion of Royston Nash, admitted in evidence against the objection of the defendant, does not appear to us to fall within any of the exceptions to the general rule requiring witnesses to state facts, and excluding their mere opinions. It is not claimed that Nash possessed any scientific knowledge on the subject as to which his opinion was given, and he did not testify as an expert. As a nonexpert, in order to make his opinion competent, it was essential, not only that it should relate to a matter with which he was specially acquainted, but the subject-matter must have been such as could not be otherwise sufficiently described; for if it was practicable for him to detail to the jury the facts within his knowledge as fully and perfectly as he had observed them, then the jury should have been left free to draw their own conclusion, and his opinion was inadmissible. 1 Whart. Ev. § 512; 1 Greenl. Ev. p. 535, § 440, note a; Bennett v. Meehan, 83 Ind. 566; Com. v. Sturtivant, 117 Mass. 122; Fort v. State, 52 Ark. 180, 11 S. W. Rep. 959; 1 Bish. Crim. Proc. § 1178; Brown v. State, 55 Ark. 599, 18 S. W. Rep. 1051; Railway Co. v. Bruce, 55 Ark. 70, 17 S. W. Rep. 363; Railroad Co. v. Shultz, 43 Ohio St. 270, 1 N. E. Rep. 324, and cases cited; Fraser v. Tupper, 29 Vt. 409; Crane v. Northfield, 33 Vt. 124. The case of Railway Co. v. Locker, (Tex. Sup.) 14 S. W. Rep. 611, cited to support the admission of the opinion in question, follows a ruling of the same court in Railway Co. v. Klaus, 64 Tex. 294. And the decision in the latter case appears to rest mainly on the authority of Porter v. Manufacturing Co., 17 Conn. 249. In the Connecticut case it was held that the opinion of a nonexpert as to the sufficiency of a dam to withstand the pressure of the waters of a certain stream was properly received, in connection with the facts on which it was based. The court did not, however, uphold the competency of the opinion on the ground, merely, that the witness had enjoyed special opportunities for observing the dam and the stream across which it was erected; but it was announced, as an additional reason for the decision, that the facts on which the witness' opinion was founded could not be definitely stated to the jury. And we find nothing in the opinions of the supreme court of Texas, in the cases referred to, which indicates that the facts in those cases were not also regarded as of such nature that they could not be reproduced before the jury precisely as they appeared to the witnesses. Nash had resided on Red river for many years, and his observation of its overflows was probably such as to make any opinion thus formed admissible if the facts observed could not themselves be perfectly described. But we do not see from the record that such description was impracticable. Having stated that since the building of the railroad the overflows have been more frequent and higher than they were previous to the road's construction, he was asked to state the cause of this difference, and answered that it was caused, in his judgment, by the embankment on which the track of the road is laid. This was the opinion objected to, and, as it appears in the record, it would seem to be founded alone on the increased frequency and depth of the overflow. It is clear that these two facts could have been placed before the jury without the least difficulty. It was...