Marshall v. Interstate Telephone & Telegraph Co.

AlleN, J.

The general rule is that the opinion of a witness is not competent evidence; he must state facts, and let the jury form the opinion. Horton v. Green, 64 N. C., 66.

There is, however, a well-recognized exception to the rule, and “It includes the evidence of common observers testifying the results of their observations made at the time in regard to common appearances, facts and conditions which cannot be reproduced and made palpable to a jury.” Britt v. R. R., 148 N. C., 41.

This is sometimes spoken of as the “shorthand statement of a fact” or as the statement of a “composite or compound fact,” several circumstances combining to make another fact, and the tendency of the courts is to enlarge and not restrict this class of evidence (Lumber Co. v. R. R., 151 N. C., 221), because frequently its exclusion would prevent the proper development of the cause of action or defense and injurious effect, if the statement of the witness is not true, may be obviated by cross-examination and the intelligence of the jury.

We have permitted witnesses to testify that a pole on which wires were strung could have been placed differently and a source of danger eliminated (Horne v. Power Co., 144 N. C., 378); that two chains would be safer than one, a fact which, it would seem, would be self-evident (Britt v. R. R., 148 N. C., 41); that a car, used in manufacturing iron, was defectively made (Alley v. Pipe Co., 159 N. C., 328); that a voltage of 110 was not dangerous (Monds v. Dunn, 163 N. C., 110), and there are other instances, but the exception has as its foundation, necessity arising from the difficulty, and frequently the impossibility of so placing a number of complicated facts before a jury that tbe proper deduction may be drawn from tbem, wben a single statement, conveying tbe impression on tbe mind of tbe witness of all tbe facts, tbe combination considered together constituting a fact, could be easily understood, and tbe exception is subject to tbe limitation tbat tbe opinion or inference of tbe witness must not be on tbe exact issue to be determined by tbe jury.

As said in McKelvy on Evidence, p. IT6: “It is a method of placing before tbe jury, in a general and broad way, a group of facts which, in detail, would be difficult of description, but which, as a whole, make up a certain conception, grasped at once by tbe mind.

“Tbe admissibility of such evidence does not extend to cases where it would not prove helpful to tbe jury, nor where its application would carry tbe witness into an expression of real opinion upon matters which it is tbe jury’s province to decide.”

This rule, excluding tbe opinion of a witness on tbe point in issue, has been approved in Summerlin v. R. R., 133 N. C., 550; Lynch v. Mfg. Co., 167 N. C., 99, and in other cases.

Applying these principles, it was error to permit tbe witness to express tbe opinion tbat tbe place where tbe plaintiff was working was not safe.

Tbe facts were few and easily understood — two sets of wires on 'one pole, tbe voltage of tbe wires, their proximity, whether without insulation or not, tbe fact tbat they passed through a sycamore tree with swaying limbs, tbe injury to tbe plaintiff — and tbe jury ought to have been permitted to draw tbe inferences from tbe evidence instead of tbe witness.

It was also an expression of opinion on tbe most important issue raised by tbe pleadings, it being alleged in tbe complaint, and denied in tbe answer, tbat tbe defendants failed to furnish tbe plaintiff a safe place to work.

In view of tbe pleadings tbe witness might as well have been permitted to say tbat in bis opinion tbe defendants were negligent as to say tbat tbe place where tbe plaintiff was working was not safe.

In Marks v. Cotton Mills, 135 N. C., 289, tbe Court, while discussing tbe admissibility of an opinion expressed by a witness, uses language very pertinent here. Tbe Court says: “Tbe witness, in our judgment, was permitted to invade tbe province of tbe court and tbe jury in thus testifying. A witness should state facts, tbe jury should find tbe facts, and tbe court should declare and explain tbe law. Tbe functions of tbe three within their several spheres are clearly defined, and should always be kept separate and distinct. Whether tbe speeder was so constructed as tbat its operation was safe to tbe defendant’s employees was tbe very question upon which tbe parties were at issue and which tbe jury were impaneled to decide.' The witness’ opinion upon that question was incompetent, and the plaintiff’s objection to it should have been sustained.”

The case of Hoyle v. Hickory, 167 N. C., 619, does not decide that a witness may say that certain conduct was negligent, but that the opinion of experts, as to whether streets were properly graded, were not conclusive on the jury.

There must be a

New trial.