Otis v. Thom , 23 Ala. 469 ( 1853 )

GODTH WAITE, J.

It may bo doubtful whether the objection to that portion of the testimony of the witness which gave his opinion as to the ferryman of the flat being expert and careful can be sustained, on the ground that such evidence was matter of opinion merely. It is, however, unnecessary to decide this question, as the record shows that it was also objected to on the ground of irrelevancy, and on this ground the objection should have been sustained. The only issue involved was, whether the collision took place through the fault of the steamboat. If this was established, the owners were responsible ; and the fact as to whether the ferryman was expert and careful, could not, of itself, have created any legitimate inference against the boat, and was for that reason foreign to the issue.

Wo think, also, that the court erred in admitting the statement of the witnesses, “ that they thought, had the steamboat returned to the assistance of the flat when the call for assistance was made, the stage could have been saved.” This was mere matter of opinion, and given by the witnesses as such, upon the facts which were stated by them. There was nothing to take it out of the general rule in relation to this kind of testimony, and the objection to it should have been sustained.

The words which were detailed by the witness as having been heard on board of the steamboat, taken in connection with the manner in which they were spoken, the fact that the engine had stopped immediately after the collision, and the fact that the boat went on as soon as the words were spoken, might well authorize the jury to infer that an order was given to the effect which was indicated by the words themselves; and in that aspect, they might be received to show that the steamboat, after being apprized of the collision, wont on, without any effort to render assistance, which is always regarded in the courts of admiralty as a suspicious circumstance.—Angell on Carriers §671 ; The Celt, 3 Hagg. Ec. R. 321.

The only remaining question is, as to the competency of the witness Sanders. The action, it is to be remembered, was brought to recover for the loss -of the stage while it was under the care and custody of this witness. If a verdict should be had by the plaintiff in the present action, the witness is placed in a state of security against any action which the plaintiff might otherwise bring against him, and for that reason is held incompetent in cases like this, without a release. — 1 Green. Ev. § 396, and cases there cited.

The judgment is reversed, and the cause remanded.

Gibbons, J., not sitting.