Wilson v. N.Y., N. H. & H. R. Co.

• Decision Date: 26 May 1894
• Citation: 29 A. 300,18 R.I. 598
• Parties: WILSON v. NEW YORK, N. H. & H. R. CO.
• Court: Rhode Island Supreme Court

29 A. 300

18 R.I. 598

WILSON

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

May 26, 1894.

Action by Thomas Wilson against New York, New Haven & Hartford Railroad Company to recover damages for personal injuries. There was a verdict for plaintiff, and defendant petitioned for a new trial. Petition denied.

Geo. J. West, for plaintiff. Walter B. Vincent, for defendant.

MATTESON, C. J. The defendant petitions for a new trial on several grounds.

First. Because the court permitted the plaintiff, against the defendant's objection, to file an amended declaration. It contends that the amendment was not in a matter of form, but of substance; and that the judiciary act (chapter 15, § 4) authorizes amendments in matters of form only. We do not so construe the statute. The language is: "The court may at any time permit either of the parties to amend any defect in the process or pleadings, with or without terms, in the discretion of the court., or in pursuance of general rules." "Any defect" surely is broad enough to include substantial as well as merely formal defects. But this language in the judiciary act is merely declarative of a rule which has always been practiced here and elsewhere, that the court, in its discretion, may permit amendments, even in matters of substance, which do not go to the length of changing the form of action, or introduciug a new or different cause of action. Guilford v. Adams, 19 Pick. 376; Ross v. Bates, 2 Root, 198; Cooper v. Waldron, 50 Me. 80; Burt v. Kinne, 47 N. H. 361; Sumner v. Brown, 34 Vt. 195; Wright v. Hart, 44 Pa. St. 454; Snyder v. Harper, 24 W. Va. 206; Mahan v. Smitherman, 71 Ala. 563. The cause of action in the present suit was the alleged negligence of the defendant, whereby a collision occurred, at the Lonsdale crossing in the town of Cumberland, on January 18, 1893, between a freight train of the defendant and a sleigh in which the plaintiff was riding. By some inadvertence or mistake the declaration, as originally filed, described the accident as having been on March 1, 1893, in the town of Lincoln, instead of on January 18, 1893, in the town of Cumberland. The amended declaration corrects this error, and sets forth with more particularity than in the original declaration the matters in which it is alleged the defendant was guilty of negligence; but it does not change the form of action or introduce a different cause of action. We are of the opinion that the court properly permitted the amendment.

Second. Because the court, subject to the defendant's exceptions, permitted the plaintiff's counsel to read to the witness Thomas Schora from his testimony at the trial of another case involving the same subject-matter, by which it is alleged the witness was led to give an answer desired by the plaintiff. Plaintiff's counsel apparently desired to show that the train ran a considerable distance, after colliding with the sleigh, before it could be stopped, for the purpose of arguing to the jury that the train was running at an unusual or dangerous rate of speed. The witness, being asked, "How far past the crossing did the engine and cars go after striking the sleigh?" replied: "It was beyond the depot. How far beyond the depot I can't tell." Plaintiff's counsel then asked: "Do you recollect testifying as follows in one of these cases: 'As far as I could judge, it brought up under the archway that comes up there on the Lonsdale road' ?" The witness replied, "I believe at that time I was asked if I couldn't judge whereabouts the train had stopped, and I think I said, 'Somewhere about the archway.'" Plaintiff's counsel then said: "I will read a question to you: 'About how far past the crossing did the engine and train go before it stopped?'" to which the witness answered: "Yes, sir; I remember saying that it stopped somewhere either under or by the bridge. Whether it is exactly the words or not I can't say. But I know that it stopped beyond the depot. It must have done so, quite a ways." We think that this method of attempting to put in testimony may properly be criticised, but, as the jury found specially that the train "was not run at an unreasonable rate of speed," It is evident no injury resulted to the defendant. Permitting the reading of testimony to the witness was equivalent to asking him a leading question. While it is true that, as a general rule, leading questions are inadmissible, the rule has its exceptions, resting in the sound discretion of the court. Thus they are permissible when the witness appears to be hostile to the party producing him, or in the interest of the opposite side, or unwilling to testify, or where an omission in his testimony is evidently caused by a want of recollection, which a suggestion may assist. State v. Tracey, 12 R. I. 216; Moody v. Powell, 17 Pick. 498; 1 Greenl. Ev. § 435. The asking of a leading question, then, being a matter of discretion, unless the discretion is abused, and a substantial Injury has been done, affords no ground of error or for a new trial. State v. Tracey, 12 R. I. 216, and Gunter v. Watson, 4 Jones (N. C.) 455.

Third. Because the witness Ada Young was permitted, against the defendant's objection, to give her opinion as an expert in relation to driving, it not being shown that she had had any experience in driving or the management of horses By reference to the record it appears that the witness was asked, "How did he [the driver of the sleigh in which the plaintiff was riding] drive from the time he left Pawtucket until he got to Attleboro, and from Attleboro until he got to this railroad crossing?" The witness answered, "Well, he had his horses under pretty good control, and he seemed to drive carefully." We do not think that this testimony was objectionable. The statement that the driver had the horses under pretty good control was not so much a matter of opinion as of fact. The statement that he seemed to drive them carefully, though a matter of opinion, was not necessarily a matter of expert opinion. In Com. v. Sturtivant, 117 Mass. 122, the court, after reviewing numerous cases, states its conclusion that common observers, having special opportunities for observation, may testify to their opinions as conclusions of fact, although they are not experts, if the subject-matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time, and the facts upon which the witness is called to express an opinion are such as men in general are capable of comprehending; and, generally, opinions are competent in the classes of cases in which they are the best testimony,— as where a mere description without an opinion would generally convey a very imperfect idea of the force, meaning, and inherent character of the thing described. Hence nonexperts may give their opinions on questions of identity, resemblance, apparent condition of body or mind, intoxication, sickness, health, and the like. State v. Pike, 49 N. H. 399; 1 Greenl. Ev. (14th Ed.) § 440, and notes.

Fourth. Because the court excluded certain testimony respecting orders of the town council of Cumberland relating to railroad crossings. Pub. Laws R. I. c. 810, § 1, of March 26, 1869, required all railroad corporations whose roads ran through the state to cause flagmen to be placed where railroads crossed public highways whenever, in the opinion of the town councils, it should be deemed necessary for the safety of the public. In accordance with this statute the town of Cumberland, on October 2, 1871, on the petition of certain persons, passed the...