« EelmineJätka »
mitted that there is no possible injury. On the thing of the sort. Then it is put in another way contrary, it was contended that some possible in- | in an extremely ingenious way - in Mr. Barber's jury might accrue. But when that contention is argument, to the effect that riparian proprietors in looked at closely, I think it vanishes. So long as a stream are a class of persons in the nature of a Free does that which he is doing there cannot be close borough, and that any one of them has a right possibly more injury than he is now inflicting, to object to the introduction into that class of persons which is nil. Of course, if he does something dif- who have not got property bordering on the stream. ferent, that is another matter. If by means of that Well, where is the authoritory for that? It is an pipe he were to impede this stream, and not return ingenious suggestion, but no authority has been the water, there would be cause to complain. As cited in support of it, and I am very wary of extendlong as he is doing nothing more or less than he ing to the discussion of the rights of water any does now there is no possibility of injury at all. analogy drawn from close boroughs, or any thing of Then, failing that, it very ingenious attempt has the sort. I distrust the argument. It strikes me been made to support this case by trying to force as a false analogy altogether. It comes back howus to carry a step further the decisions as regards ever to this, that the right of these plaintiffs has non-riparian grants. I mean the Stockport Wuter not been infringed, and that is the answer to the works Company v. Potter, 3 H. &. C. 300, and whole case." Ormerod v. Todmordlen Joint Stock Mill Company, 11 Q. B. Div. 155. It is put in this way: It is said In McNamara v. Village of Clintonville, Wisconsin that a man who is not à ripariau proprietor has no Supreme Court, February 3, 1885, 22 N. W. Rep. right to take water from a stream at all, and that if 472, an action for personal injuries caused by a fall
riparian proprietor, find anybody who is not a on a defective sidewalk, it was held that no decluction riparian proprietor taking water from the stream, I should be made from the damages on account of the can maintain an action for an injunction, although prolongation of the plaintiff's disability by reason I am not damnified. Well, that is a very startling of his predisposition to inflammatory rheumatism. proposition, and one would like to see some author- | Cassoday, J., said, citing Oliver v. La Mulle, 36 Wis. ity for it. It goes to an extent which is bordering 592; Stercart v. Ripon, 38 id. 584; Broun v. Ry. on the absurd. According to that, if I am a riparian Co., 5+ id. 312; S. C., 41 Am. Rep. 41: “In one of proprietor at the mouth of the Mississippi, and these cases the plaintiff was allowed to recover insomebody a thousand miles up diverts the water, creased clainages ly reason of an organic tendency although not to my detriment, I can obtain an in- to scrofula iu his system and in each of the others junction. That is ridiculous. Let us see what the by reason of a miscarriage in consequence of the cases come to, and whether they afford any coun- injury. In the Broin case the distinction was made tenance for a proposition of that kind. When they between actions for tort, where the wrong-doer is ure looked at they do not do any thing of the sort, held liable for all injuries naturally resulting directly The case of Stockport Interiorhs Company v. Potter from the wrongful act, though unforeseen, and acsimply decides that the grantee of a riparian pro
tions for the breach of contract, where the damages prietor must take the water as he finds it. If it is are limited to such as arise naturally from such dirty when it comes to the mouth of his pipe, he breach of contract itself, or from such breach comcannot complain of those who have dirtied it. IIe bitted under circumstances in the contemplation of has not the rights of a riparian proprietor. The caso both parties at the time of the contract, as in Flick does not decide that the licensee or grantee of a
v. Wetherbee, 20 Wis. 392; Richardson v. Chynoweth, riparian proprietor cannot take some water from the 26 id. 656; Candec v. Western Union T. Co., 34 stream if he hurts nobody. Such a proposition id. 471; S, C., 17 Am. Rep. 452; Wulsh v. Railway strikes me as monstrous. In Ormerod v. Toilmorden Co., 42 Wis. 23; IIill v. Chipman, 59 id. 218; FadJoint Stock Mill Compaay, the decision was that the ley v. Bilvendule, 9 Exch. 341; Hobbs v. London, etc., grantee of a riparian proprietor could not take water R. Co., L. R. , 10 Q. B. 111; IIorne v. Midland Ry. Co., and return it in a state so as to do injury to those L. R., 8 C. P. 131; Jones v. George, 48 Am. Rep. below him. The argument there was that he could, 280; Bugley v. Clerclanıl, etc., R. Co., 30 Alb. Law. provided he was doing that which was reasonable. J. 490. The rule applicable to contracts thus quoted The stress of the contention was that he had all the is taken from the opinion of the court in the recent rights of a riparian proprietor. But neither of case of IIumilton v. Nagill, L. R. 12 Ir. 202, and is those cases decides that a licensee, or a grantee of there said to be a more accurate statement than is a riparian proprietor, cannot take any water from found in Hudley v. Burendale. To the same effect the stream. They decided nothing of the sort, nor are the notes to that case in Sherley's Lead. Cas. did they warrant any such inference. Yet unless | 227-230, and IIurrey v. ('unnecticut, etc., R. Co., we go that length, this argument in support of the 124 Vass. 425; S. C., 26 Am. Rep. 673. See also plaintiff's case cannot be sustained. The argument the late case of Hollahon r. Fielil, L. R., 7 Q. B. cannot be maintained unless we say that a riparian | Div. 595, where tire plaintiff recovered on contract proprietor cannot allow anybody to take any water for the injury to his horses, who caught cold from out of a stream, whether anybody is injured or not. unnecessary exposure to the weather.
In that case It seems to me it would be monstrous to say any lubbs v. Railway, is severely criticised and narrowly
limited, if not entirely overruled. The distinction taken in the Brown case has been recognized in several of the more recent cascs, and in some of them that decision is expressly sanctioned. Baltimore, etc., R. Co. v. Kemp, 30 Alb. Law J. 92; S. C., 61 Md. 74, 619; Cincinnati, etc., R. Co. v. Eaton, 94 Ind. 474; S. C., 48 Am. Rep. 179; Ehrgott v. Mayor, 96 N. Y. 281; S. C., 48 Am. Rep. 622; Tice v. Munn, 94 N. Y. 621 ; Jurdock v. Boston, etc., R. Co., 133 Mass. 15; S. C., 43 Am. Rep. 480; Beauchamp v. Saginaw 11. Co., 50 (Mich. 163; S. C., 45 Am. Rep. 30; McMahon v. Field, L. R., 7 Q. B. Div. 591; and see Mr. Irving Browne's notes, 47 Am. Rep. 381, 387; 41 Am Rep. 53, 58. See also as bearing upon the question, Pittsburg, etc., R.Co. v. Staley, 1 Am. Law J.(Ohio) 136; S. C., 30 Alb. Law J. 110; Leuis v. Flint & P. M.Ry. Co., 19 N. W. Rep. 744. In actions on contracts of carriage it has often been held that a corporation or party coull not by con. tract wholly exempt itself from all liability for injury inflicted by its own negligence. Richardson v. Chicago & N. W. Ry. Co., 56 Wis. 347; Canfield v. Bultimore, etc., R. Co., 45 Am. Rep. 268; Sager v. Portsmouth, etc., R. C., 50 Am. De 659. In such cases the damages recoverable cannot be within the contemplation of the contract; for they are recovered in spite of it. In Mesahon v. Field, one of the judges went so far as to say that 'the parties never contemplated a breach, and the rule should rather be that the damage recoverable is such as is the natural and probable result of the breach of contract.' To the same effect is Ehrgott v. Mayor, 96 N.Y. 280. In this New York case the court say: When a party commits a tort resulting in a personal injury, he cannot foresee or contemplate the consequences of his tortious act.
A city may leave a street out of repair, and no one can anticipate the possible accidents which may happen, or the injuries which may be caused. true rule, broadly stated, is that a wrong-cloer is liable for the damages which he causes by his misconduct. 96 N. Y. 281; S. C., 43 Am. Rep. 480.”
anil provided it be relevant to the case (3) (b), or although it may render him liable to a civil action (4) (C).
1. In the course of a trial a witness is asked if he ever committed adultery with a certain woman. improper had passed between a witness and the prisoner was not allowed to be put to the former. In a note to this case it is said: “The law as to what questions may be asked in cross-examination, the answers to which have a direct tendency to degrade the witness, is very obscurely laid down in the books; and if they are permitted to be asked, there is equal obscurity whether the witness shall be excused from answering. As to whether a witness is compellable to answer degrading questions, in the case of Cooke, and in the case of Sir John Freind for high treason, Treby, C. J., laid down that a witness is not bound to answer questions " that will subject him to penalties or infamy.”' In Layer's case the judges appear to be of the same opinion. All these cases are reported at large in the State trials. As to what questions will be allowed to be 'put, in the case of Maelride v. Maelride, 4 Esp. Rep., which was an action of assumpsit, a female, who had proved the plaintiff's demand, was cross-examined as to whether she was not in keeping of the plaintiff, and Lord Alvanley overruled the question, on the ground that a witness cannot be asked questions to degrade his character; and in Rex v. Lewis, + Esp. Rep., which was an indictment for an assault, Lord Ellenborough would not permit the prosecutor to be asked whether he had been in the house of correction, However, on the other hand, there are the cases of the King v. E. Edwards, 4 Term Rep. 4-10, and that of Doctor Watson, tried at the bar for high treason. The first was an exainination of persons who were tendered as bail for the prisoner, who was charged with a larceny. The court allowed one of them to be asked if he had ever stood in the pillory for perjury; and in the latter case Mr. Wetherell, for the prisoner, asked a witness named Cartles, all sorts of degrading questions. In practice, the asking of questions to degrade the witness is regulated by the discretion of the learned judge in each particular case; for in the case of Rex v. John Barnard (infra), an accomplice was asked (unchecked by the learned baron) whether he had ever been charged with felony? How many times! Whether he had been charged with uttering counterfeit coin? With stealing clothes? With stealing fowls? And whether he had not been in gaol at Gloucester? And flogged at Wingate? To each of which questions the witness very reluctantly gave a distinct answer, adinitting nearly the whole of them. This man, it may be said, was an accomplice, and therefore was open to attack. But in Rex v. James Gilroy and Dennis English, Stafford Lent. Ass., 1823, before Bosanquet, Serjt., the counsel for the prisoners, who were indicted for highway robbery, was allowed to ask a witness, who stated that he had been a constable, whether he had not been turneil out of office for inisconduct toward a prisoner? Which he, very much against his inclination, admitted. A question which, if answered either way, will benefit your client, is always a question worth putting. The question in the principal case appears to be of this kind. It was “whether at the house any thing improper passed between him and the prisoner? If he said “yes,” it degraded him with the jury; if ho said “no," nobody who heard the case would believe it; and it would shake his general credibility. If overruled, it induced the jury to believe that such was the fact, and that the prosecutor, it allowed, would have admitted it. In some cases it is held that it is in the discretion of the court to allow a degrading question to be put to a witness. State v. Belausky, 3 Minn. 247 (1859). In others that such questions need not be answered by the witness. Vaughan v. Perrino, 3 N. J. (L.) 634 (1811); Respublica v. Gibbs, 3 Yeates, 429 (1802); Galbreath v. Eichelberger, id. 515 (1803). By statute in Iowa a witness is not compelled to answer a question which will expose him to “public ignominy.” This term is construed to mean public disgrace and dishonor, and under this statute it has been held that a woman in an action for seduction is not compellable to answer whether she has had intercourse with men other than the defendant. Brown v.Kingsley,38 Iowa,221(1874),
(3) Howel v. Com., 5 Gratt. 664 (1848); State v. Patterson, % Ired (L.), 316 (1812); Sodusky v. McGee, 5 J. J. Marsh. 621 (1831); Wroe v. State, 20 Ohio St. 470 (1870); Marx v. Bell,
48 Ala. 497 (1879); Smith v. Castles, 1 Gray, 108) (1851); Hill v. State, 4 Ind. 112 (1853); State . Staples, 47 N. H. 113 (1866); Harper v. Indianapolis, etc., R. Co., 47 Mo. 580 (1871); Taylor v. Jennings, 7 Robt. (N. Y.) 58 (1867).
(4) Judge of Probate v. Green, 1 How. (Miss.) 148,(1834); Hlays v. Richardson, 1 G. & J. 366 (1829); Taney v. Kemp, 4 H. & J. 318 (1818); Harper v. Burrow, 6 Irod. (L.) 30 (1845); Jones v. Lanier, :. Dev. 481; Conover v. Bell, 6 T.B. Monr.157 (1827),
RULES AS TO TIE PRIVILEGES OF WIT
(C.) 1. M., 2 stockbroker, being interrogated as to certain transactions between himself and S., refuses to answer on the ground that it might sulject him to the penalties of the stock-jobbing act. M. cannot be compelled to answer.(1)
RULE. But a witness may be compelled to give eviilence although it muy degralc or disgrace him (2), subject to the former rule as to crimes and penalties ;
(1) Short v. Mercier, 3 Mac. & G. 205 (1851); and see Cloyos v. Thayer, 3 Hill, 564 (1812); Poindexter v. Davis, 6 Gratt. 481 (1850).
(2, Kirschner v. State, 9 Wend. 140 (1859). The earlier English cases are somewhat contradictory. In R. v. Pitcher, 1 C. & P. 85 (1823); 11 Eng. C. L., a question whether any thing
If adultery be a crime in that jurisdiction he is not cluding the testimony of a witness, merely because compelled to answer; if it be not, he must answer(5). it will tend to disgrace himself, when others have
2. In an action of breach of promise of mar a direct interest in that testimony; and it is essenriage by A. against B., C., a witness, is asked if he tial to the establishment of their rights of property, had ever taken improper liberties with A. He de of liberty, or even of life, or to the course of public clines to answer on the ground that an answer justice. Upon such a rule, one who had been conmight disgrace him. This is no excuse (6). victed and punished for an offense, when called as
3. In a prosecution against K. for selling liquor a witness against an accomplice, would be excused without a license, a witness is asked if he had from testifying in any of the transactions in which bought spirituous liquors of K. The witness can he had participated with the accused, and thus the not refuse to answer (7).
guilty might escape, and accordingly the better 4. A witness is asked on cross-examination opinion seems to be that where the transaction whether he has not been in the penitentiary, and forms any part of the issue to be tried the witness for how long IIe cannot refuse to answer (8). will be obliged to give evidence, however strongly
5. A witness is asked whether he is not in the it may reflect on his character.' 1 Greenl. on Ev., habit of drinking intoxicants. The question is $ 454 (4). We have no hesitation in adopting the proper (9). ·
rule thus laid down. A party ought not to be de6. A witness is asked whether he saw a certain prived of the benefit of testimony material to the person tarred and feathered on a certain night. If issue of the case, nor ought the course of public the witness was one of the trespassers he is not lia justice to be defeated, merely because a witness ble to indictment, for the offense is barred by limi may subject himself to disgrace or reproach. The tation. Nevertheless, he refuses to answer on the privilege of the witness ought not to be considered ground that an answer might clisgrace him. Ilis as superior to the rights of individuals, or the derefusal cannot be sustained (10).
mands of public justice. He is required to speak In case 3, Shaw, C. J., said: “What crime would of a transaction in which he voluntarily particithe answer of the witness tend to fix on him? Not | pated. If he sustains a loss of reputation iu consedrunkenness, for non constat because he buys, he quence of his disclosures, it is but the result of his will drink to excess. The fact of buying is not own wrong. In the present case the testimony made criminal by the statute.
Suppose a sought was clearly material to the issue on trial. murder, arson or burglary committed in a house of In either point of view the witnesses were bound ill-fame, could no witness be asked respecting it, to testify, and the court erred in excusing them.” because it would lead to the question whether he 1. On a prosecution for performing an abortion was there for an improper purpose?”
on B. in April, 18-10, B. having testified to having In casc 6 it was said: “The authorities all agree had sexual intercourse with one C. before that time, that where the question is asked respecting a mat is asked whether she had also before that had sexual ter collateral to the issue, or with a view to impair intercourse with other persons. The question is the credibility of the witness, he is not bound irrelevant, and B. need not answer (11). to give testimony that will directly tend to dis 2. In the same case B. is asked whether she did grace him. There is however much conflict of not have a venreal disease in 1835. The question opinion on the point whether he is bound to tes is irrelevant, and B. need not answer (12). tify concerning a matter material to the issue. Such 3. A witness who is called as an expert as to albeing the case, we are at liberty to adopt the rule terations in handwriting is asked as to his occupathat may best promote the rights of parties, and
tion before he came to the country some years besubserve the ends of justice. The views of Mr. fore. Ile refuses to answer because Greenleaf on this subject are so forcible and sound might degrade him. His refusal is proper (13). as to justify a quotation at some length. He says: When," it was said in case 1, “a party intends 'On this point there has been it great diversity of to coerce an answer tending to degrade a witness, opinion, and the law still remains not properly set he is bound to show affirmatively that the question tled by authorities. But the conflict of opinions is relevant; there is nothing to show such relemay be somewhat reconciled by a distinction, vancy in this case, and the court was right in rewhich has been very jroperly taken, between cases fusing to compel the witness to answer the queswhere the testimony is relevant and material to the tion." issue and cases where the question is not strictly In case 2 it was said: “As the question put to relevant, but is collateral, and is asked only under the witness did not relate to any matter of fact in the latitute allowed in a cross-examination. In issue, or to any matter contained in his direct testhe former case there seems great absurdity in er timony, and as a truthful answer to it would tend
to degrade him, he was not bound to answer." (5) R. F. Castro or Orton, Trial, vol. 2 (1975); and see Till 1. In a civil action a witness objects to answerson v. Bornley, 8 Mo. 16.3 (1831). (6) Clark v. Reese, 35 Cal. $9 (1868).
ing a question on the ground that it may revive an O Com. v. Kimball, 24 Pick. 366 (1837).
old debt against him. This is no excuse (14). (8) Real v. People, 42 N. Y. 280 (1870).
(11) People v. Lobman, 2 Barb. 216 (1818). (9) Campbell 6. State, 23 Ala. 82 (1853).
(12) Id. (10) Weldon v. Burch, 12 Ill. 375 (1851).
(13) Re Lewis, 39 How. Pr. 155 (1869).
“It is a matter of singularity,” said Goldthwaite, EARL, J. On the 17th day of May, 1880, and for a J., in case 1, “that the question whether a witness long time prior thereto, the plaintiff owned a certain
lot of land numbered 104 in the county of Warren, in objecting to answer could excuse himself on the
this State, and the defendant owned lot 116, situated ground that by answering he would subject him north of 104, and lot 105, situated west of 104. The deself to a civil action or pecuniary loss, was never fendant had leased lot 105 to Charles Hammond to solemnly decided in England until the precise ques- work upon shares, under an agreement by which each tion was put to the judges, upon the impeachment party was to furnish half the seed and have half the of Lord Melville in 1806. Four of the judges there crops, and the defendant was to pay Hammond $10 per
acre for clearing so much of the lot as besbould choose gave opinions that a witness, under such circum
to clear. On Thursday, the 13th day of May, Hamstances, might excuse himself, and ought not to be mond, for the purpose of clearing up a portion of his compelled to answer; the other eight judges held lot, set fire to some wood and brush thereon. That the contrary opinion. Lord Eldon and Lord Ellen- fire burned moderately, and smouldered Friday, Satborough, among the latter, seem to consider the urday, Sunday and until Monday, when the wind be
gau to blow, and the fire started up and passed out of question even as somewhat offensive, for the for
tbat lot upon lot 116 and 104. On Monday, the 17th, in mer observes, in no measured strain, “that al the forenoon, the defendant, for the purpose of clearthough his experience was equal, not only to any ing up a portion of lot 116, set a fire upon that lot, and individual judge on the bench, but to all the either at the time he set fire or shortly after, the wind judges, with their collective practice, yet he never
began to blow a sharp gale. One or both of the fires
thus set upon these two lots passed lot 104 and set fire knew a single objection to have been taken to an
to and burned down a house and barn upou that lot interrogatory proposed, because the reply to it belonging to the plaintiff; and this action was brought would render the witness responsible to a civil by him to recover his damages thus sustained. suit.” Lord Ellenborough, too, insisted that dur
[Omitting minor matters.] ing the entire course of a life devoted to the prac
There was evidence tonding to show that the fire was
set upon lot 116 by the defendant at a time when the tice of the law, and to the duties of the bench, he
land was very dry, and when the winol was blowing a did not remember a single instance where the ob- strong gale in the direction of the plaintiff's lot. The jection had been taken. Mr. Justice Chambre puts defendant's witnesses gave evidence as to the condition the matter thus: “ The public must not call on a
of the land, the state of the weather, and of the wind witness to give evidence, or do justice between A.
and various other circumstances surrounding the fire.
As a witness in his own behalf he testified that he was and B., because such evidence might prevent the
a farmer, and that he had cleared and seen others clear witness from acting unjustly by C. or D., to whom land, and then ho was asked this question: “What do the witness might wish to act unjustly, or from you say as to whether or not as to that time the fires whom he should wish to withhold a just debt. were set there at that place, it was a proper time in (See opinions of the judges, 1 Ilall's Am. Law your judgment for burning log heaps or a fallow that
had been burned over?” The question was objected Jour. 225.) Owing to the difference of opinion be
to on the part of the plaintiff as ca for a conclutween the judges, a declaratory act of Parliament sion of the witness on a subject not proper to give an was passed. In this country the rule has been set- opinion; that the witness could only state faots, aud tled in most of the States, in conformity with the the jury must draw the conclusions. The trial judge opinion of the majority of the English judges. (See remarked that the evidence would be received from the cases collected in Cowen & Hill's Notes; 7:39.) As principle that the witness was shown to have superior
knowledge upon that subject. The plaintiff excepted a rule of the common law, it has never, we think, to the ruling, and the witness answered, “I thought it admitted of serious question that a witness is way." Another witness, who was shown to have had bound to answer any pertinent and material inter- exporience in clearing land, was asked this question: rogatory, although his answer may have the effect “How was it at that time as to being dry enough for a to render him liable to a civil suit. That there proper time to burn a fallow?” which was objected to
on the part of the plaintiff as calling for a conclusion. may be exceptions to this, as a general rule, is quite The objection was overruled, and the witness an. possible, but the case on the record certainly is not swered: “It was dry enough.” Another witness, who entitled to be so considered.”
was also shown to have had experience in clearing JOIN D. LAWBON. land, was asked this question : “What do you say as
to whether it was a proper timo or not to burn a fal
low?” to which there was the same objection and rulEVIDENCE — (PLVIOV OF EXPERTS -- WHEN IV. | ing, and he answerod : “I should say it was a proper COHPETENT.
time to burn it, and advised him that way that day.”
We think thero was some evidence from which a NEW YORK COURT OF APPEALS, DEC. 16, 1884.
jury could have found that the fire which destroyed
plaintiff's buildings came from lot 116, and the jury FERGUSON v. IIUBBELL. *
may have found from the answers to these questions The proper time to burn a fallow is not a proper subject of that the fire was set at a proper time, and thus may expert opinion.
have beeu influenced to find their verdict in favor of APPEAL from judgment of the General Term in
the defendant. .
It is contended on behalf of the plaintiff that the points.
questions objected to were improper, and that the subN. P. Hlinman, for appellant.
ject of the inquiry was not one proper for expert eri
dence. S. Brown, for respondont.
The questions related to a vital point in the
case. The principal claim on the part of the plaintiff *To appear in 97 N. Y.
was that in consequence of the wind and the dryness
of the ground, and the wood, brush and timber, it was ions of hired and generally biased experts. A long au improper time to set fire; and whether it was or time ago in Tracy Peerage, 10 Cl. & Fin. 154, 191, Lord not, was the main question to be determined by the Campbell said that skilled witnesses came with such a jury if they reached the conclusion that the fire came bias on their minds to support the cause in which they from lot 116. These witnesses were therefore asked are embarked, that hardly any weight should be given their opinions upon a controlling issue which was to be to their evidence. Without indorsing this strong landetermined by the jury. In answering the questions guage, which is however countenanced by the utterthey did not testify to facts, and they did not tell what ance of other judges and of some text-writers, and bethey knew as matter of knowledge. They simply ex lieving that opinion evidence is in many cases absopressed opinions which wero based upon the facts as lutely essential in the administration of justice, yet we they existed. The general rule of law is that witnesses think it should not be much encouraged and should be must state facts within their knowledge, and not give received only in cases of necessity. Better results will their opinions or their inferences.
be reached by taking the impartial, unbiased judgTo this rule there are some exceptions, among which ments of twelre jurors of common sense and common is expert evidence. Witnesses who are skilled in any experience than can be obtained by taking the opinscience, art, trade or occupation may not only testify ions of experts, if not generally hired, at least friendly, to facts, but are sometimes permitted to give their whoso opinions cannot fail generally to be warped by opinions as experts. This is permitted because such a desire to promote the cause in which they are onwitnesses are supposed from their experience and listed. study to have peculiar knowledge upon the subject of From a careful examination of many cases in this inquiry which jurors generally have not, and are thus and other States, we are satisfied that the quessupposed to be more capable of drawing conclusions tions objected to in this case should bare beeu exfrom facts, and to base opinions upon them, than oluded. jurors generally are presumed to be. Opinions are In Fraser v. Tupper, 29 Vt. 409, in an action like this, also allowed in some cases where from the nature of a question entirely similar to this was held to be inthe matter under investigation, the facts cannot be admissible. There the defendant offered to prove by adequately placed before the jury so as to impress farmers who were acquainted with the clearing of land their minds as they impress the minds of a competent, by burning the same, and who were upon the land the skilled observor, and where the facts cannot be stated day the firos were set, and who described to the jury or described in such language as will enable persons, as well as they could the position of the fires and the not eye witnesses, to form an accurate judgment in re force and direction of the wind ; that in their opinions gard to them, and no better evidenco than such opin it was a suitable and proper and safe day for setting ions is attainable. But the opinions of experts cannot the piles on fire with reference to tho position of the be received where the inquiry is into a subject the na piles in respect to the plaintiff's coal, and the force and ture of which is not such as to require any peculiar direction of the wind. To this evidence the plaintiff habits or study in order to qualify a man to under objected, and it was excluded by the court, and to its stand it.
exclusion the defeudant excepted, and it was held that It is not sufficient to warrant the introduction of ex the ruling was proper. In the opinion of the court it pert evidence that the witness may know more of the is said: “There could be no difficulty in this case in subject of inquiry, and may better comprehend and .the witnesses stating to the jury the position of the appreciato it than the jury; but to warraut its intro fires which were set by the defendant, their number duction the subject of the inquiry must be one relat and magnitude, the direction and course of the wind, ing to somo trade, profession, science or art in which the position, distance and character of plaintiff's proppersons instructed therein, by study or experience, erty, and its exposure to iujury from that sourco. may be supposed to havo more skill and knowledge Tho jurors, upon the question whether the defendant than jurors of average intelligence may be presumed exercised proper care, could form as definite opinion generally to have. The jurors may have less skill and from the facts stated by the witnesses as the witnesses experience than the witnesses, and yet have enough to themselves. The subject-matter is not one of science or draw their own conclusions and do justice between the skill, but is susceptible of direct proof, and in most cases parties. Where the facts can be placed before a jury, the triers themselves are qualified from experience in the and they are of such a nature that jurors generally are ordinary affairs of life, duly to appreciate the material just as competent to form opinions in reference to facts when found. If there is any materiality attached them and draw inferences from them as witnesses, to the force of the wind on that day we do not see any then there is no occasion to resort to expert or opin difficulty in conveying a true idea of it, sufficient at ion eridence. To require the exclusion of such evi least for all practical purposes. dence, it is not needed that the jurors should bo ablo In Iliggins v. Dewey, 107 Mags. 494, the action was to seo tho facts as they appear to eye-witnesses, or to also like this, and the defendant offered to provo by a be as capable to draw conclusions from them as some surveyor and civil engineer of many years' experienco witnesses might be, but it is sufficient that the facts in clearing land by fire, who had observed the effects can be presented in such a manner that jurors of ordi of wind on fires in different localities, and bad been dary intelligence and experience in the affairs of life upon the land where tho defendant set his fire and can appreciate them, can baso intelligent judgments made a plan of it, and was acquainted with the sur. upon them, and coniprehend them sufficiently for the rounding country, that there was no probability that a ordinary administration of justice.
fire set under the circumstances in the case as described The rules admitting the opinions of experts should by the witnesses would be communicated to the not be unnecessarily extended. Experience has shown plaintiff's land; but tho judge excluded the evidonce, that it is much safer to confine the testimony of wit and his ruling was held to be proper on the ground nesses to facts in all cases where that is practicable, that the evidence offered related to a subject within and leare the jury to exercise their judgment and ex the common knowledge of the jury. S.C.,I Am. Rep.63. perience upon the facts proved. Where witnesses tes In Luce v, Dorchester Jlutual Fire Ins. Co., 105 tify to facts they may be specifically contradicted, and Mass. 297, the action was to recover for a loss on a polif they testify falsely are liable to punishment for per icy of insurance against fire upon a dwelling house jury. But they may give false opinions without the which the plaintiff had left unoccupied at the time of fear of punishment. It is generally safer to the loss, and for some time before; and the opinions take the judgments of unskilled jurors than the opin of witnesses that leaving a dwelling house unoccupied