St. Louis & S. F. Ry. Co. v. Ritz

• Decision Date: 10 April 1885
• Citation: 33 Kan. 404,6 P. 533
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. A. G. RITZ

6 P. 533

33 Kan. 404

THE ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. A. G. RITZ

Supreme Court of Kansas

April 10, 1885

Error from Greenwood District Court.

ACTION by Ritz against The Railway Company, to recover damages alleged to have been caused by the failure of the defendant to construct and maintain proper cattle-guards. Trial at the December Term, 1882, and verdict and judgment for plaintiff for $ 221. The Company brings the case here. The opinion states the facts.

Judgment affirmed.

S. S Kirkpatrick, for plaintiff in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

A. G Ritz brought his action in the district court of Greenwood county against the St. Louis & San Francisco Railway Company, to recover damages which he suffered and were occasioned, as he alleges, by the failure of the railway company to construct and maintain proper cattle-guards where its road entered and left the plaintiff's inclosure. The railroad of the defendant passes through plaintiff's farm where a crop of corn was growing, and he alleges that by reason of the railway company's neglect and refusal to make and maintain proper guards, a large number of cattle and horses entered upon his premises over the defective guards, and ate up and destroyed corn of the value of $ 175; and he also claims, that by reason of the defendant's neglect in this regard he necessarily expended in an effort to save his crop from destruction the sum of $ 175, for which he asked judgment.

A trial was had with a jury, resulting in a verdict and judgment for the plaintiff for the sum of $ 221. The railway company brings the case here, assigning several errors, which will be briefly noticed.

I. It is first urged that the court erred in sustaining an objection to the questions asked T. J. Kelley, a section foreman of the railway company who was engaged upon the section of the railroad passing through plaintiff's land. After showing that he was experienced in railroading and in the building and repairing of cattle-guards, and also that he was acquainted with the cattle-guards in question, the inquiries were made: If in his opinion the cattle-guards in question were properly constructed? Were the cattle-guards constructed in the usual and ordinary way of constructing cattle-guards by railways? And if it was possible to construct a guard that would prevent breachy stock from crossing it?

These questions called merely for the opinions of the witness, and we think there was no error in excluding them from the jury. As a general rule, opinions of witnesses are not admissible in evidence. The facts should be stated, and the jury left to draw inferences and form opinions upon the facts. There are exceptions to this rule, as upon a question of skill or science, or where the subject-matter of inquiry is of such a character that jurors not having experience would not be apt to reach a correct judgment without the aid of expert testimony. But we think the case at bar does not come within any of the exceptions. Cattle-guards are in such common use and are so simple in construction, that practical business men of common experience, when given the facts, can, without the aid of opinion, reach a correct conclusion as to whether the guards were proper and sufficient to complete the inclosure. A jury, coming as it does from the body of the people, many of whom are necessarily familiar with the habits of domestic animals, and with what is necessary to restrain them, is probably more capable of determining whether a cattle-guard is proper and sufficient to prevent stock from crossing it than the man who is experienced only in building cattle-guards.

The supreme court of New York has passed upon this question, and held that the inquiry, whether a cattle-guard on a railroad is properly constructed, is not the subject of expert testimony, but that when the manner of construction is shown, the jury is competent to determine whether it is suitable and sufficient, without opinion evidence. In deciding the question, the court say:

"That when the manner of its construction was shown, the jury was competent to speak of its fitness for use, as was any person engaged in its construction, or in the construction of such guards, however numerous. It does not require experience in the construction of cattle-guards to know that if the timbers composing the superstructure are so near each other that the feet of horses or cows will not pass between them, the guard furnishes no obstruction to cattle desiring to pass over it. If the opening between the timbers is only two inches, and the animal's foot is five inches in length it can pass almost as easily as if the timbers were in actual contact. No amount of opinions could justify the finding that a cattle-guard so constructed was fit for the use for which it was constructed, however skillful and competent the...