Graham v. Pennsylvania Co.

OPINION,

Me. Justice Mitchell :

That the opinions of witnesses are in some cases admissible as evidence, even when not coming properly under the head of expert testimony, has long been established in practice. In several classes of questions, the line between the witness’s judgment or opinion and his affirmation of a fact is so indistinct that it cannot be marked out in practice. Such are questions of identity of persons or things, of the lapse of time, of comparative shape or color or sound, of expression and through it of meaning, etc. In all of these, however positively the witness may affirm facts, what he says is after all largely his opinion, but so blended with knowledge and recollection that the line where opinion ends and fact begins cannot be distinguished. Hence, both must be admitted or both excluded, and to do the latter is often to shut out the only light the case admits of. In questions, therefore, of identity, of sanity, of handwriting, and some others of like nature, opinions of witnesses, having sufficient knowledge of the particular circumstances to form the basis of a responsible judgment, have been admitted without hesitation. Such is the elementary doctrine laid down in Greenleaf and other authoritative works, but the theory on which such evidence is admitted is very slightly developed. The cases, however, have extended far beyond the classes mentioned in the text books, and may be said not only to have become legion, but legion against legion. An examination of a large number of them, while not enabling us to reconcile all the practical applications, does, we think, show that the ground on which such evidence must always rest, as expert testimony strictly so called does, is a clear necessity.

One of the earliest and strongest cases, since constantly cited in favor of the admission of such testimony, is Porter v. Pequonnoc Co., 17 Conn. 249 (1845), where the opinions of observers, not professional engineers or builders, were allowed to be given, as to the sufficiency of a dam to stand the pressure of a flood which it was contended ought to have been anticipated. The case is decided without any abstract discussion, but the germ, at least, of the principle'may be found in the following language of Stoees, J.: “ It is impossible for a person, however skilful or scientific, to give an intelligent or precise opinion on facts testified to by another witness in the manner in which they are frequently related. Such witness may detail in the best manner he can the facts on the subject of which the opinion of a scientific person is sought, but it may be impossible to extract from his testimony the data for such an opinion with sufficient precision and certainty.”

In the following year (1846), the Supreme Court of Vermont, in Clifford v. Richardson, 18 Vt. 620, put the principle still more clearly, thus: “ When all the pertinent facts can be sufficiently detailed and described, and when the triers are supposed to be able to form correct conclusions without the aid of opinion or judgment from others, no exception to the rule is allowed. But.the facts are sometimes incapable of being presented with their proper force and significancy to any but the observer himself.Under these circumstances, the opinions of witnesses must of necessity be received.” This states very clearly and forcibly the principle and the limits of its application. In those matters where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, the description by the witness must of necessity be allowed to be supplemented by his opinion, in order to put the juiy in position to make the final decision of the fact. It is thus expressed in Commonwealth v. Sturtivant, 117 Mass. 122, where a large number of illustrations are given, some of which, I may say, in passing, seem to us extremely questionable: “The exception.includes the evidence of common observers testifying to the results of their observation, made at the time, in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury.”

But, as necessity is the ground of admissibility, the moment the necessity ceases the exception to the general rule that requires of a witness facts and not opinions ceases also. Hence, whenever the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or other, are not admissible. This is well stated by Chief Justice Shaw, in New Eng. Glass Co. v. Lovell, 7 Cush. 321: “ The principle upon which this evidence is admissible is clear and entirely just. In applying evidence which does not go directly to the fact in issue, but to facts from which the fact in issue is to be inferred, the jury have two duties to perform: first,.to ascertain the truth of the fact to which the evidence goes, and thence to infer the truth of the fact in issue. This inference depends on experience.Now, when this experience is of such a nature that it may be presumed to be within the common experience of all men of common education, moving in the ordinary walks of life, there is no room for the evidence of opinion; it is for the jury to draw the inference.” The law is thus summed up in the Am. & Eng. Encye. of Law, tit., Expert and Opinion Evidence, VI.: “ Opinions are never received if all the facts can be ascertained and made intelligible to the jury, or if it is such as men in general are capable of comprehending and understanding. The ordinary affairs of life cannot be the subject of expert testimony.” See volume 7, p. 493, and cases there cited.

This examination of elementary principles and general authorities has seemed necessary, because our own cases on the exact point are few, and supposed not to be in entire harmony. Passing by the cases where opinions not of experts have been received, practically without challenge, upon questions of sanity, identity, etc., the first case on the subject is Beatty v. Gilmore, 16 Pa. 463. Defendant was building a house on Market street, Harrisburg, and had left an area-way from the street into the basement without a guard or railing, and the plaintiff fell into it. Witnesses were allowed to state their opinion that it was dangerous. This was held to be proper, and the case has been accordingly cited as in favor of the general admissibility of such evidence; and Bell, J., does say that it is “ a species of testimony always resorted to in cases like the present.” But it appears from the report that there was a porch projecting beyond the area, and that, to fall, a person would have to turn aside from the direct way. It is not, therefore, clear that the mere description of the place would convey to the jury an adequate idea of it with reference to the danger, and this seems to have been in the mind of the court, from the language of the opinion, that testimony as to the dangerous character of the excavation “ was, in truth, rather the assertion of a fact dependent in some measure upon opinion, than of an abstract opinion without more.” That this was the ratio deci-dendi also appears probable from the cases cited in the opinion, which are clearly cases where the circumstances were incapable of adequate description. So understood, Beatty v. Gilmore is entirely in the line of the best authorities heretofore cited. If not to be so understood, then it must be considered as materially modified by the cases hereafter to be noticed.

The next case, Minnequa Imp. Co. v. Coon, 10 W. N. 502, was clearly in the same line. The opinions of witnesses as to the violence and unusual character of the storm were certainly necessary to supplement their descriptions; and, as to anything beyond that, this court said that if the witness “ had any claims to the character of an expert,” the court below would., not be reversed on a matter so much within its discretion. The only other case is Franklin Ins. Co. v. Gruver, 100 Pa. 266, in which it was held that an insurance expert could not be permitted to give his opinion that the erection of a frame building next to the building insured increased the risk in fact. The basis of decision was indicated in the opinion of Gordon, J.: “ How any person can be said to be an expert in that which must necessarily result from observation so general that it must be common to every person, we cannot understand.” In the same general line are Amor. Steamship Co. v. Landreth, 102 Pa. 135, and Lombard Ry. Co. v. Christian, 124 Pa. 125, though in both of these the admissibility of the testimony was discussed rather as declarations of agents than as opinions necessary for the information of the jury. From this view it appears that our own cases are not really in conflict with each other, and that certainly the latest and most authoritative of them are in harmony with the best elementary doctrine. Some occasional difference in application may be unavoidable, because, as said by Chief Justice Shaw in New Eng. Glass Co. v. Lovell, supra, there is extreme difficulty in laying down any rule precise enough for practical application, and the only proper course is to keep the principle steadily in view, and apply it according to the circumstances of each case.

In the present case, the alleged dangerous place was a raised part of the platform, or broad step, four feet wide and nine inches high. It came clearly within the range of ordinary experience. The briefest statement would convey a perfect comprehension of the place, and every juryman who ever got in or out of a car, or went np or down a flight of steps, was as capable of judging of the alleged danger as the witnesses who gave their opinions. The first and second assignments of error must be sustained.

The third, fourth, and fifth assignments must also be sustained. There is no situation in which ordinary care is not required of a plaintiff, and want of it a bar to recovery: Del. etc. R. Co. v. Cadow, 120 Pa. 559. It is unnecessary to discuss, now, whether the railroad company was bound, in its platforms and approaches, to use the very utmost degree of care, as it is to passengers during actual carriage. If the result in fact was a platform which could be used without danger by a passenger exercising ordinary care, then the company had done its duty, so far as this plaintiff was concerned; and, as its points were based on the finding of this fact by the jury, they should have been affirmed: Del. etc. R. Co. v. Napheys, 90 Pa. 135.

In the Napheys case, the absence of a step or elevation in the platform was the only negligence alleged, and on it the jury found a verdict for the plaintiff. In the present case, the presence of such an elevation seems to have been sufficient for the jury to find negligence and a verdict for the plaintiff. Defendant’s counsel, for reasons which are not apparent to us, omitted to ask for a nonsuit or a peremptory direction in their favor. Notwithstanding this omission, however, it is clear that the admitted facts fail to establish any negligence of defendant, and that the plaintiff must, as a matter of law, always fail to recover. It would therefore be useless to send the case back for another trial.

Judgment reversed.