McDonald v. . State

Follett, Oh. J. Oliver Thomas, who reduced the bearings of the stringers, was called as a witness in behalf of the state, and was asked: “ Q. How, with what you did to these stringers of this bridge, did you leave it, in your judgment, safe for the ordinary uses of a highway bridge ? Objected to on the ground that the witness is not shown competent to give an opinion with reference to the bridge, and it is immaterial whether, in his judgment, he left it safe or not.” This objection was overruled, the claimants excepted, and the witness answered that he did. In effect, the witness was permitted to testify that the employes of the state were not negligent in making the change; that the bridge as changed was safe “ for the ordinary uses of a highway bridge,” and he was thereby permitted to determine whether the state or its employes were negligent, which was an issue to be decided by the board. Again, it does not follow that a bridge which was “ safe for the ordinary uses of a highway bridge ” was sufficient to sustain the traffic in that particular place. A civil engineer and bridge builder was asked by the counsel for the state whether, in his judgment, stones of the size and weight mentioned, united and moved as described, were an excessive load for the bridge as originally constructed, *22 to which, the claimants objected as immaterial, and as calling for an opinion regardless of facts, but their objection was overruled, and an exception taken. The witness answered: “ It was an excessive load; was too large a load for the bridge to carry, as originally constructed.” The evidence does not show how the strength of the ¡Dañéis was affected by the change. The opinion of the witness as to whether the weight was excessive for the bridge before it was changed was not competent, the issue being whether the bridge, as reconstructed, was sufficient to bear the traffic which might reasonably be expected to pass over it. Again, the witness, by his answer, was allowed to testify not only that the weight was excessive, but, in effect, that the stones were negligently united and moved over the bridge by the claimants, thus putting himself in the place of the Board of Claims, whose duty it was to determine from all of the evidence whether or not the claimants, by their own negligence, contributed to the accident. It was competent for experts in the art of bridge building and having knowledge of the strength of timber used in such work to testify to the supporting power of the bridge, or any one of its panels, or any one of its stringers, and had they not gone beyond this no error would have been committed. (Hughes v. County of Muscatine, 44 Iowa, 672.) It is urged in behalf of the state that the first ground of error specified by the claimants in their notices of appeal is not sufficiently definite to enable them to raise these questions in this court. The statute provides that “ Every appeal shall be in writing, stating briefly the grounds on which it is taken, and subscribed by the party or his attorney.” (§ 10, ch. 205, L. 1883, as amended by § 10, ch. 507, L. 1887.) Also, that “ On the hearing before the Court of Appeals only such questions shall be considered by the court as are raised by the notice of appeal. And on all questions not raised by the notice of appeal it shall be presumed that sufficient evidence was given to sustain the award.” (§ 11, ch. 205, L. 1883.) We think the specification that “ The board of claims erred in receiving evidence against the objection and exception of the *23 claimant” sufficiently pointed out the error on which they intended to rely. The record does not show that any other evidence than this pointed out was admitted against their objection, and the counsel for the state was clearly apprised by this specification that these rulings would be challenged on appeal. The order in each case should be reversed and a new hearing directed before the Board of Claims, with costs to abide the event. All concur. Order reversed.