Bishop v. Wight

YQUMANS, District Judge. Edna F. Bishop brought suit in the slate court against George Wight for the alleged negligent killing of her husband, Samuel E. Bishop, and the case was removed to the federal court, where, upon trial, at the conclusion of the evidence, the jury was directed to return a verdict for defendant. There are 32 assignments of error. In the brief for plaintiff in error these are reduced substantially to 2: That the court erred: (1) In direedng a verdict in favor of the defendant. (2) In refusing to permit plaintiff’s counsel to ask the witness Metz, testifying as an expert, certain questions. , The complaint charges, in substance, that the defendant, Wight, was driving an electric automobile along one of the streets of Denver at a greater rate of speed than was reasonably safe, and that he so negligently operated the vehicle that he drove it suddenly and violently upon the sidewalk, and caused it to- strike Samuel E. Bishop, who.was walking thereon, and to inflict upon him injuries from which he afterwards' died. The answer details the occurrences leading up to the striking of Bishop as follows: “That in the forenoon of the 25th day of July, A. D. 1912, this defendant was lawfully riding in and operating an electric automobile, directing the same in a northwesterly direction upon and along that certain street or thoroughfare in tho city and county of Denver, Colo., known as Fifteenth street; that this defendant was driving or directing said automobile on the right nr proper side of said street, and that he was then and there exercising all due and reasonable care in the management, driving, operation, and control 1 hereof, having regard to the location and safety of the public and the then condition of traffic, and further that he was then and there, and at all times in said complaint mentioned, in all matters, things, and respects observing and conforming 1o all rules, regulations, laws, and ordinances with respect to the operation, driving, and control of vehicles, and was exercising all due, reasonable, propei’, or possible care in the premises, and while so engaged, and while driving said electric automobile down or in a northwesterly direction upon said Fifteenth street as aforesaid, at the time aforesaid, and when within about T5 feet below or northwest from the point or place where that certain street or thoroughfare in the city and county of Denver, Colo., known and designated as Glenann street, intersects with said Fifteenth street, and while and when this defendant was so rightfully, properly, and lawfully thereon, and driving thereon as aforesaid, and while this defendant was so exercising and observing all due, proper, possible, or reasonable care and caution as aforesaid, and while he was operating and driving the aforesaid electric automobile at a rate of speed not to exceed from four to six miles per hour, the said automobile so driven by this defendant as aforesaid was struck with great force and violence by a certain very large and heavy vehicle, known and designated os an automobile touring car, the motive power whereof was an engine propelled by gasoline, and which said touring car was then and there occupied, driven, and under tho care and management of one Lester G. Palmer, who then and there negligently, carelessly, and unskillfully, and without having due or any regard for the safety of the public or of this defendant, steered, drove, and directed tho said touring ear at a high and excessive rate of speed, and negligently and carelessly, and in an effort to pass the electric automobile so driven by this defendant as aforesaid, did so manage, handle, and direct said touring car or automobile that the rear right wheel thereof collided with and against tho electric automobile so driven by this defendant as aforesaid, and especially did the said touring car, so negligently and carelessly driven [394] by the said Palmer as aforesaid, collide with great force and violence against the left front wheel of the electric automobile of this defendant. This defendant further avers and alleges that the steering of guiding mechanism or machinery of the electric automobile so driven by this defendant was then and there' connected with and attached to and operated upon the front wheels thereof, and that when the said touring car, so driven and directed by the said Palmer as aforesaid, collided therewith, and with the left front wheel thereof, then and, there the said steering mechanism, as well as the power control of said electric automobile, was violently displaced, dislocated, and disarranged, and being so displaced, dislocated, and disarranged was then and there temporarily' rendered wholly beyond the power of this defendant or of any human agency to control; that so great and violent was the impact of the said touring car, so driven and directed by the said Palmer as aforesaid, that the electric automobile, so driven and occupied by this defendant as aforesaid, and notwithstanding the immediate, forcible, and continued application of the brakes thereto by this defendant, was suddenly and with great violence carried to and thrust upon the sidewalk upon the northeasterly side of said Fifteenth street, and that then and there, and wholly beyond the power of this defendant or any human agency to prevent, the said electric automobile, so driven by this defendant as aforesaid, was also carried to and thrust upon the person of said Samuel E. Bishop, who was then and there upon said sidewalk.” ' The testimony showed that the injury occurred substantially as stated in the portion of the answer above quoted. [Í] The questions put to Metz were intended to elicit statements to the effect that after the striking of the front wheel of the electric automobile by the hub of the wheel of the touring car, thereby causing the former to turn abruptly towards the sidewalk, it could have been stopped by Wight within such a distance as would have avoided the striking •of Bishop. The questions were put in different forms. The following may be taken as a fair representative: ,“Q. Suppose, Mr. Metz, that two cars are proceeding in-a northerly direction down Fifteenth street, one an electric coupé and the other a five-passenger Cadillac touring car, and the left wheels of the electric coupé are approximately 6 to 16 inches from the right car track of the inbound track—right rail of the inbound track—and the automobile (gas car) is operating in the same direction, and while going past the electric coupé the rear hub of the right rear wheel thereof comes in contact with the rim of the left front wheel of the electric, causing the front wheels to turn at an angle so that, if the movement of the electric coupé, were continued, it would strike the curb, apparently both front wheels at the same time; and suppose, further, that this Ohio electric is operated under the first or second speed, going ahead: State to the jury what in your judgment would be the distance that machine could be stopped in by an immediate application of the brakes immediately after the point of contact or impact and the shutting off of the power?” The court sustained objections to these questions upon the ground that they were not matters for expert testimony. We think this ruling of the court was correct. “The primary rule, concerning all evidence, is that personal knowledge of such facts as a court or jury may be'called upon to consider should be required of all witnesses, where it is attainable. It is also an elementary rule that, where the court or jury can make their own deductions, they shall not be made by those testifying. In all cases, therefore, where it is possible to inform the jury fully enough to enable them to dispense with the opinions or deductions of witnesses from things noticed by themselves, or described by others, such opinions or deductions should not usually be received.” Evans v. People, 12 Mich. 27; Missouri Pac. Ry. Co. v. Fox, 56 Neb. 746, 77 N. W. 130; Brinks Chicago Express Co. v. Kinnare, 168 Ill. 643, 48 N. E. 446. [395] The only aid an expert could have given would have been for Him to have stated within what distance a vehicle of the type in question and run at the rate given could have been stopped. It was impossible for him to form any more accurate judgment of the effect of the impact of die touring car against the electric coupé than the jury could form for itself. [2] There was no testimony tending to show negligence on the part of Wight. He had no control over the force which was the proximate cause of the injury. It was through no fault of his that the vehicle was turned towards, and driven upon, the sidewalk. The complaint tendered no issue on the question of due care on his part after his machine ivas struck. Even if it had, the undisputed testimony shows that he did all he could to. stop it. It was therefore the duty of the trial court to direct the jury to return a verdict in his favor. Canadian Northern Ry. Co. v. Senske, 201 Fed. 637, 120 C. C. A. 65, and authorities there cited. The judgment of the court below must be affirmed; and it is so ordered.