Healy v. Visalia & Tulare R.R.
Before: Harrison
Synopsis
Negligence—Overturning of Hand-car—Evidence—Opinion of Witness.—In an action to recover for injuries caused by the overturning of a hand-car upon which a passenger was being conveyed upon defendant’s road, the testimony of another passenger upon the same trip who was sitting on the rear end of the hand-car at the time it was thrown from the track, in answer to a question as to whether, under the circumstances, it was possible for an ordinary person, sitting in the position of the plaintiff, to stand the force of the jar and still retain his seat upon the car, does not fall within the rule which excludes the opinion of a witness.
Id.—Opinion in Connection With Statement of Facts.—The opinion of a witness may be received in connection with his statement of the facts upon which it is based, when the impressions or sensations caused by external objects are not susceptible of exact reproduction or description in words, and the judgment or opinion of the witness by whom they have been experienced is the only mode by which they can be presented to a jury.
Id.—Width of Car—Appearance of Plaintiff.—Opinion evidence that the hand-car was too narrow for the track, and also as to the appearance of plaintiff immediately after the accident, may be given by witnesses who observed the facts.
Id.—Opinion of Medical Witness—Reference to “Cases on Record” —Medical Books.—Although medical books themselves cannot be read in evidence, yet a physician who testifies as an expert witness may state not only his opinion but the grounds of his opinion, although in some degree founded on books, as a part of his general knowledge, and the reference of such witness to ‘ ‘ cases on record ” in connection with his opinion is not incompetent, nor in effect permitting the introduction of medical books to the jury.
Id.—Opinion Evidence—Objection Upon Appeal For the First Time. Objection to the opinion evidence of a physician upon the ground that it was not adapted to the facts shown in the case, or that it was not based upon a hypothesis consistent with those facts, cannot be urged upon appeal for the first time, where no objection of this character was made at the trial.
Id.—Result of Injury—Inability of Plaintiff to do Household Work. —The testimony of the plaintiff that prior to the time of the accident she was able to do all of her household work, and since the accident had occurred she had not been able to do such work, is competent and admissible for the purpose of showing the extent and character of the injury sustained.
Harrison, J.— The plaintiffs are husband and wife, and on the 20th of May, 1890, took passage with the defendant, to be carried over its railroad from Visalia to the city of Tulare. At about a mile before reaching Tulare there was a washout in the track of the defendant, and some passengers, including the plaintiffs, were transferred from the car in which they had been carried to a hand-car, by which the defendant undertook to carry them to Tulare. Mrs. Healy took her seat upon the forward end of the hand-car, with her feet hanging [589]down towards the track, and after they had gone some distance the hand-car left the track, and Mrs. Healy, falling to the ground, was run over by it, and received serious injuries, for which the present action was brought. The jury rendered a verdict in favor of the plaintiffs for seven thousand two hundred dollars, and the defendant has appealed.
1. One Ashmead was a passenger on the defendant’s road upon the same trip, and was sitting on the rear of the hand-car at the time it was thrown from the track. At the trial his deposition was read in evidence by the plaintiffs, in which, after describing the accident, he was asked: “ Under the circumstances, was it possible for an ordinary person, sitting in the position Mrs. Healy was sitting in, to stand the force of the jars and still retain her seat upon the car?” To this question the defendant objected, upon the ground that it was irrelevant, incompetent, and immaterial, and merely called for the opinion of the witness. The objection was overruled, and the defendant excepted.
This question does not fall within the rule which excludes the opinion of a witness. The general rule is that the testimony of a witness shall be limited to the facts of which he has a personal knowledge, and that he shall not give his individual opinion thereon; but in many instances the opinion of a witness may be received in connection with his statement of the facts upon which it is based. The border line between fact and opinion is often very indistinct, and the statement of a fact is frequently only an opinion of the witness. Impressions or sensations caused by external objects are not susceptible of exact reproduction or description in words, nor do they affect every individual alike, and the judgment or opinion of the witnesses by whom they have been experienced is the only mode by which they can be presented to a jury. The question asked of the witness in the present case did not call for an opinion from him depending upon facts which he had subsequently learned, but he was asked to describe the effect
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