Davis v. Oregon Short Line R.

McCAETT, C. J. (after stating the facts). Morgan Jenkins, who assisted plaintiff from under the bobsleigh at the time of the accident, was called as a-witness — 312 — by plaintiff, and testified that on the night in question “the wheels of the car were three or four feet from the bank.” He further testified that, “subsequently, in daylight, about three or four days after this accident, ‘I came along there.” He was then asked: “Could you see marks of the car wheels across the road then ?” To this question defendant interposed an objection, on the ground that it was irrelevant, immaterial, and too remote. The objection was overruled, and the witness answered: “Yes, sir; these tracks were in the same place that I had seen the cars on the night of the accident.” The admission of this testimony is now alleged as error. It is contended by appellant that no evidence was introduced which tended to show that the conditions at the place where plaintiff was hurt remained the same from the time of the accident until the day the witness made the observations inquired about, and therefore the testimony was irrelevant and prejudicial. Conceding, without deciding, that, as an abstract proposition of law, it was error to permit Jenkins to give testimony as to the conditions at the place of the accident three or four days after it occurred, yet it is apparent that appellant could not have been prejudiced by this testimony. Evidently it was introduced for the purpose of showing the close proximity of the end of the car to the gully, and that there was not sufficient space between the car and the gully for a team and sleigh to pass. In the testimony complained of Jenkins placed the car two feet farther away from the -gully than he did in his testimony about which no complaint is made. In other words, the testimony was favorable, rather than prejudicial, to appellant. Then there is another reason why this testimony could not have been prejudicial to defendant. The undisputed evidence’ shows that the distance between the end of the car and the gully was at most but a few feet. Mrs. Stella Thomas, a witness for defendant, testified that she, in company with another lady, drove over the road in question in a cutter at about 2 o’clock a. m. on the.night of the accident; that “there were some cars across the wagon road at the northeast corner of the roundhouse as we went homo. In order to pass there we — 313 — bad to’drive around tbe oars. I do not know bow far around we bad to go, but we bad to drive into a little gully, or something of that kind, in order to get around tbe cars.” Thomas Larson, another of defendant’s witnesses, testified, in part, as follows: “I went down there tbe morning after tbe accident. East of tbe roundhouse there is a little gully, or whatever you call it. . . . It is right opposite tbe end of the roundhouse, and was at tbe end of where these cars bad" been.” And, further, tbe record shows that, when plaintiff’s team became frightened, it “bolted off tbe road- into tbe gully.” Plaintiff was not attempting to drive between tbe end of tbe cars and tbe gully. Hence,' tbe question as to whether there was sufficient room between these two points for tbe passage of plaintiff’s team and bobsleigh was not an issue in tbe cause. Therefore, as we view tbe case, it is wholly immaterial whether tbe space between the cars and tbe gully was four or six feet, or even a greater distance, because this question can have no possible bearing on tbe issues in tbe case. Appellant next complains of tbe admission of evidence respecting that part of tbe highway which was closed by defendant about tbe year 1900, and over which it has since constructed numerous railroad tracks. This portion of the old highway was traveled by the public prior to the construction by defendant of the viaduct and the opening by it of the new road mentioned in the foregoing statement of facts. Plaintiff alleges in his complaint that at the time he received the injuries complained of he was traveling along a public road. By its general denial defendant put in issue the alleged public character of the road. And on the trial de-, fendant introduced evidence showing that it owned the fee to the land over which the new road was constructed. J. T. Gamble was called as a witness by plaintiff, and, after testifying to the changes made by defendant in the course of the highway at the time it built the viaduct, and to the location of the old and new road with respect to the roundhouse and the numerous railroad tracks in that immediate vicinity, was — 314 — permitted, over defendant’s objection, to' Answer the following question: “Q. State whether or not the defendant company constructed any tracks after yon went across that road [referring* to the old highway]. A. Well, there has been a number of switches put in there, and quite a bit of trackage. Q. State whether or not the construction of those tracks made it difficult and dangerous. A. Why, yes; it would be very difficult for a vehicle to pass over these tracks, almost impossible.” Defendant having denied that the new road was a highway, it was proper for the plaintiff to show that, when defendant closed the old road, which the record shows had been open to and used by the public for twelve years, the new road was thrown open to the public, and that the travel was diverted from the old road to the new. In fact any evidence tending to show that the new road was a highway was admissable. Therefore we think it was proper for the plaintiff to show the permanent character of the obstructions in the form of improvements which defendant had placed on and across the old road, as tending to show, when considered in connection with other evidence in the case, a dedication by defendant of the new road as a highway. (13 Cyc. 496.) The fact that it might have been difficult or impossible for a vehicle to pass over and along the closed portion of the road, we think, was wholly unimportant; but we do not think the admission of the evidence was prejudicial error. The witness having detailed the facts upon which he based his conclusion that it would be difficult for a vehicle to pass over the old road — the only reasonable conclusion that can be drawn from the facts upon which it is predicated — we fail to see wherein it was prejudicial to defendant, especially in view of the fact that the question involved was, as above stated, unimportant and wholly immaterial. “If a statement of- inference, conclusion, or judgment is accompanied by an enumeration of facts upon which it is based, the error, if any, is usually harmless, as the jury can estimate the probative value of the statement. Thus, where a witness states merely by way of summary — 315 — or introduction or deduction from facts which he gives in detail, the error does not furnish cause for reversing a judgment.” (17 Cyc. 60, and numerous eases cited in note.) Mrs. Davis, plaintiff’s wife, testified that prior to tbe accident plaintiff’s health, was good. Then,' over the objection of defendant’s counsel, she was permitted to answer the question “whether he was affected with pains in his back and side,” prior to the accident. The answer was: “No, sir.” The witness further testified as follows: “When my husband came in after the accident he was crippled, and he went immediately to bed.Mr. Davis stayed in bed four ■or five days. Then he would get out, but came back again, and he was in bed most of the time for about six months'. After the accident Mr. Davis’ side and back were black .and blue and had scratches and bruises on them. His knee and wrist were also bruised. Dr. Gamble left some liniment there, and we rubbed him with that, and his body was bandaged around his back.” Then, over the objections of defendant, the witness was permitted to answer the following questions: (a) “Whether plaintiff’s condition is different from one time to another;” and (b) “state what the facts have been and were at the time [immediately after the jury] with reference to his being lame.” The witness further testified that she was compelled to get up nights and rub plaintiff; that he used crutches off and on for six months after he received the injury; that prior to the accident he was able to work; “that he did all the stable work before the accident, but has not been able to.do so since he was hurt.” It is contended that the questions objected to called for the opinion of the witness, and that the court erred in permitting her to answer them. The witness was plaintiff’s wife, and had lived with him for many years, was in attendance upon him during his illness, and was in a position to observe and to inform herself of his general physical condition as it was, both before and subsequent to the time he was injured. The rule is well settled that a nonexpert witness, having been in constant attendance on a person, and having had the opportunities for observing the movements and general physical condition of such — 316 — person, as the record shows were afforded Mrs. Davis in this case, is competent to testify whether the person is in good or poor health, and whether such person is afflicted with pains,or is free from pain. In Railway Co. v. Fishman, 169 Ill. 196, 48 N. E. 447, it is said: “Opinions may be given by nonexpert witnesses as to state of health, hearing, or eyesight of another, or the ability of-another to work, or walk, or to use his arms or legs naturally, or whether such one is suffering from pains or is unconscious or in possession of his or her mental faculties.” The following authorities declare this same doctrine-: 17 Cyc. 87; 3 Wigmore on Evidence, section 1974; 2 Jones on Evidence, section 362; Gillett on Indirect and Collat’l Ev. section 213; Chicago & E. I. R. R. Co. v. Randolph (Ill.) 65 N. E. 142; Baltimore & O. R. R. Co. v. Rombo, 59 Fed. 75, 8 C. C. A. 6; Parker v. Steamboat Co., 109 Mass. 449; Robinson v. Exempt Co., 103 Cal. 1, 36 Pac. 955, 24 L. R. A. 715, 42 Am. St. Rep. 93. Appellant -requested court to instruct the jury to return a verdict in its favor, “no cause of action.” The refusal of the court to so instruct the jury is now assigned as -error. Appellant seeks to invoke and apply the rule in this case respecting the degree of care that plaintiff was bound to exercise as was announced in the case of Silcock v. R. G., etc., R. Co., 22 Utah, 185, 61 Pac. 565. By an examination of that case, it will be seen that Silcock went to the railroad station to purchase coal, and stopped with his team about twenty or thirty feet from the railroad track, and while there a belated train, running at the rate of fifty or sixty miles an hour, frightened the team, which became unmanageable, collided with the train, and was killed, and the plaintiff injured. On a previous occasion he had stopped at the same place with his team while the same train passed by, and he testified that “this particular train went through rapidly enough to probably frighten his team.” In the course of the opinion it is said: — 317 — •‘He [plaintiff] was chargeable with the knowledge of the fact that the train might be late, and that it, or any other train, might pass there at any time. . . . Appellant was hound to exercise ordinary care, and that, according to the facts disclosed, demanded that the team should be left at a greater distance from the track, or at least securely tied.” It thus clearly appears that the facts in that case and in the case at bar are not at all similar. It is not claimed that the defendant in this case had been accustomed to pushing its cars off its switch-tracks and onto the highway. In fact, for aught that appears in the record, the night in question was the first time that anything of the kind ever occurred. Therefore it cannot be held that plaintiff was chargeable with knowledge that defendant might at any time push its cars off the tracks and across the highway and leave them there. If plaintiff’s team had been frightened by a passing train, or by one of the switch engines in defendant’s yards, a different proposition from the one before us would be presented, and in that case the rule laid down in the Bilcock Case might control. The record shows that the wagon road on which the plaintiff was traveling at the time he received the injuries complained of was a highway that was extensively used and traveled by the public. Plaintiff testified that the night was very dark, and on this point he is corroborated by the testimony of other witnesses. The witness Jenkins testified that he could not see the cars until he “got pretty close to them.” And again he says: “Notwithstanding the fact that there was snow on the ground, I could not see the cars until I got right up to them.” Mrs. Stella Thomas, a witness for the defendant, passed o-ver the road in a cutter on the night of the accident, and she testified on this point as follows: “We did not see the cars until' we got right close to them, and then we had to turn to the right.” The cars, according to the testimony of all the witnesses who testified respecting them, were low flat cars. No lights were placed near them. In fact, nothing was done by defendant to advise or warn travelers that the cars were standing across the highway. We are of the opinion, and so hold, — 318 — that, under tbe facts and circumstances of tbis case as disclosed by tbe evidence, tbe question of negligence on tbe part of tbe defendant, and that of contributory negligence of the part of tbe plaintiff, were properly submitted to tbe jury, and tbat tbe court did not err in refusing to grant tbe peremptory instruction asked for by defendant. We find no reversible error in tbe record. Tbe judgment is therefore affirmed, with costs. STRAUP and NRICK, JJ., concur.