Ringlehaupt v. Young

Battle, J., 1. Examina» tion of experts. after stating the facts as above reported. The circuit court properly refused to allow Stillman to-answer the question propounded to him. He did not disclose any knowledge of facts upon which an opinion could be formed upon the subject matter of inquiry, and hence was not competent to express any, except upon a hypothetical statement of facts. Expert witnesses cannot be called upon to decide disputed questions of fact. It is the office of the jury to decide-them. As to how the opinions of experts should be elicited and adduced as evidence, when the expert is not personally acquainted with the material facts in the case, Chief Justice-Shaw, in delivering the opinion of the court in Dickenson v. Fitchburg, 13 Gray, 546, 556, correctly stated the law as follows: “In order to obtain the opinion of a witness on, matters not depending upon general knowledge, but on facts not testified of by himself, one of two modes is pursued either the witness is present and hears all the testimony, or the testimony is summed up in the question put to him; and in either case the question is put to him hypothetically, whether if certain facts testified of are true, he can form an. opinion, and what that opinion is.” Thompson on Trials, secs. 593, 595, and cases cited. Ewing was competent to express an opinion upon the subject matter upon which his opinion was asked. He'was an, ■expert witness and had full knowledge of the manner in which the excavation was made, and the quality aud condition of the earth around and above the “footings” of Young’s walls before and immediately after the fall of appellant’s building, and the probable effect of the weight of her wall upon such earth, if the excavation had been the -cause of its fall. Upon the facts known by him he was competent to express an opinion. Brown v. Huffard, 69 Mo., 305; Bellefontaine, etc., Ry. Co. v. Bailey, 11 Ohio St., 333, 337; Bellinger v. N. Y. Cent. Ry. Co., 23 N. Y., 42, 46; Transportation Line v. Hope, 95 U. S., 297, 298; Rogers on Expert Testimony (2d ed.), sec. 31. There was no error in refusing the instructions, which’ were substantially given in other instructions. 2. No new trial for error at to nominal dam-There was no error prejudicial to appellant in the overrul ^ ing of the motion for a new trial on the condition that defendant consented to a judgment against him for all the costs. The jury were required to find specially “ Whether •any encroachments on plaintiff’s land at the ‘ footing ’ of defendant’s wall caused or contributed in any material degree to cause the fall of plaintiff’s wall.” They answered “No.” There was evidence to support the finding. This being true, a mere naked trespass was committed. Apart from the fall of the building of appellant, the evidence does not show that she suffered any more than nominal damages. This court Jh heretofore decided that it would not remand a cause for a new trial when the evidence shows that the appellant is only entitled to nominal damages. Buckner v. Railway, 53 Ark., 16-18; DeYampert v. Johnson, 54 Ark., 165. Judgment affirmed.