Porter v. Pequonnoc Manufacturing Co.

Storks, J. The first question before us respects the admissibility of the testimony of the Walkers. It does not clearly appear from the motion, that the objection of the defendants went any farther than to the reception of the mere opinions of these witnesses, unconnected with their statement of the facts on which their opinions were founded ; and if it did not, they have no cause of complaint, as the court below decided, that such opinions were inadmissible. If, however, the fair construction of the motion is, that the objection was to the statement of the witnesses in connexion with the facts on which they were founded, we are of opinion, that such testimony was properly received. It is not questioned, that, it was competent for these witnesses to state their knowledge of the stream on which the defendants’ dam was built, and its character as to the rapidity of its rise in times of freshet, and the quantity of water, which, at such times, would accumulate in the pond, as well as the manner in which the dam was constructed. But the defendants insist, that they should not have been permitted to go further, and express their opinions as to the sufficiency of the dam to sustain the pressure of the water upon it, at such times, on the ground that they professed to have no peculiar skill as to the mode of constructing dams, and that such opinions could come only from those possessing such skill. It does not appear to have been claimed, that the dam in question was not built in the ordinary mode, or that there was any thing peculiar in the fashion of it, or the principles [256] on which it was constructed. But the claim was, that it was -deficient in strength, independent of any peculiarity in the mode of its construction. Its sufficiency in this respect, depended, not merely on the question whether it would sustain -the quantity of water which would be accumulated by it, but whether it was capable of sustaining it in connexion with the unusually sudden and violent manner in which it was accumulated in that stream. The judgment or opinion of these witnesses, as practical and observing men, was sought on this point, on the facts within their knowledge, and to which they testified. They had acquired, by their personal observation, a knowledge of the character of the stream, and also of the dam, and were therefore peculiarly qualified to determine whether the latter was sufficiently strong to withstand the former. The opinions of such persons, on a question of this description, although possessing no peculiar skill on the subject,"would ordinarily be more satisfactory to the minds of the triers, than those of scientific men, who were personally unacquainted with the facts in the case ; and to preclude them from giving their opinion on the subject, in connexion with the facts testified to by them, would be to close an ordinary and important avenue to the truth. Indeed, if none but professional persons could be heard on such an inquiry, the result must often be left to be determined by mere conjecture. It is impossible for a person, however skillful 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 or certainty. The present case furnishes a striking illustration of this remark. The wetnesses stated, that the water in the stream across which the defendants’ dam was placed, rose very rapidly, in times of freshet; and that a great deal of water passed where that dam was; that the dam was built very high — higher than any they had ever known — more that» twenty feet high, and keeping back a very large and deep pond of water; but how rapidly it rose, what quantity of water passed*, how high the dam was, or how large or deep a pond of water was kept back, does not appear, nor could the [257] witnesses state with definiteness. It is obvious, that no peca-liar skill on the subject would enable one to give an opinion on the sufficiency of the dam, based on such testimony, which would be a sure guide to the opinions of the triers. Nor would the statement of any abstract principles, by scientific witnesses, be of more essential use to them in connexion with such testimony. The subject of inquiry, in this case, which was the strength of the defendants’ dam, was not, however, one on which it was necessary to call such witnesses. On such a question the judgment of ordinary persons, having an opportunity of personal observation, and testifying to the facts derived from that observation, was equally admissible, whatever comparative weight their opinions might be entitled to, of which it would be for the jury to judge. It was a question of common sense, as well as of science. The authorities fully sanction the reception of the opinions’ of the witnesses offered in this case. They show the general rule to be, that the opinions of witnesses are not evidence ; but that there are several exceptions to it, and that the present case falls within one of them. In one class of these exceptions, the mere opinion of the witness is evidence ; as, for instance, whore he is an expert, so termed, or is called to prove the identity, or the hand-writing of a person, or the value of property. But there is another class of exceptions, in which the opinion of the witness is evidence in connexion with the facts testified to by him, on which it is founded. Thus, it was held in Grant v. Thompson, 4 Conn. R. 203. where the defence of lunacy was interposed, in an action on a promissory note, that the opinions of witnesses, although not professional, were admissible in connexion with the facts on which they were founded. So in Root v. Richardson, 3 Mass. R. 330. and Dickinson v. Barber, 9 Mass. R. 227. the subscribing witnesses to a will were held to be competent to testify as to the sanity of the testator. In Wogan v. Small, 11 Serg. & Rawle, 121. and in Harrison v. Rowan, 3 Wash. C. C. Rep. 580. other witnesses, who spoke from actual knowledge of the testator, were allowed to express their opinions as to his sanity ; and in Rambler v. Tryon, 7 Serg. & Rawle, 90. it was held, that facts, and opinions of the sanity of a testator founded on them, may be received from any of his acquaintances. So also in Morse v. The State, 6 Conn. R. 9 [258] althonSb Ibe mere naked opinion of the witness as to the age of a person, was rejected, the court were of opinion, that if the • • • , , , , witness had stated the facts indicative of age, his opinion, hi connexion with them, would have been admissible. We thinfc, _ these cases, and the reasons on which they were decided, apply to the point before us, and justify the admission of the testimony in question. As to the testimony of Nichols, it does not appear to have been called for, by the plaintiff; and when objected to after-wards, by the defendants, on the ground that its admission was not authorized by any of the averments in the declaration, the plaintiffs did not claim that it was, and no use was .made of it by him ; for it is stated in the motion, that no further notice was taken of the testimony in the progress of the trial. It crept in, as the motion shows, merely through the inadvertence of the witness, and could not, under the circumstances, have produced any injury to the defendants. A new trial, therefore, should not be granted on this account. The defendants claim, that the jury should have been instructed to return a verdict for tie plaintiffs on the second count only of the declaration, if they found that the defendants’ dam was carried away in consequence of its unreasonable and improper height, and not in consequence of its bad materials or improper construction. This point depends on the admissibility of evidence under the first count to show that the improper height of the dam was the cause of its destruction ; for if such evidence was legally applicable to the first count, there is no rule which requires the jury to apply it to the other. We are of opinion, that on a fair construction of these counts, the carrying away of the dam, is, in both, alleged to be in consequence of its improper height, and also of its bad materials and construction ; and therefore, that in this respect, they are alike. In the second count, the injury is imputed to these causes with more distinctness and perspicuity than in the first; but we perceive no difference between them as to their true and substantial import. As the evidence therefore applied to both counts, the jury should not have been restricted in their verdict to either. For these reasons, a new trial is not advised. In this opinion the other Judges concurred. New trial not to be granted.