Paige v. Hazard & Kelley — 5 Hill & Den. 603

Majority

p. 603

Paige vs. Hazard and Kelley.

Headnote

The opinions of witnesses based upon a state of facts sworn to by others, are not proper evidence, except in matters lying peculiarly within the knowledge of ex. ports. Per Cowen, J.

In an action for negligently injuring and sinking a canal boat, the plaintiff, after proving the cause of action as alleged, called upon a witness who testified that ho was a boatman and knew the boat in question previous to her being injured ; that he had raised sunken boats and caused them to be repaired. He was then asked the following question: “ From the description of the situation of the boat as given by the witnessses, what would the damages be ?” Held, improper, and that the witness’ answer was inadmissible.

Error to the Oneida common pleas. Paige brought an action on the case against Hazard and Kelley in a justice’s court, for injuring and sinking a canal boat belonging to the former, by negligently running against her with a raft. On the trial before the justice, the plaintiff, after proving the injury complained of, called as a witness one Thurber, who testified that he knew the boat in question previous to and about the time of

p. 604

the injury, and had heard the testimony of the. other witnesses as to the manner in which she was injured and sunk; that he had been much engaged in boating, had raised sunken boats and catised "them ■ to be repaired. He was then interrogated thus: “From the description of the situation of the boat in . question as given by the witnésses, whát would the damages be?” The defendants objected to the question, but the justice allowed it to be answered, and the plaintiff .recovered judgment.A certiorari was afterwards brought, and the common pleas, re-' . versed the judgment; whereupon, the ■ plaintiff shed-out a writ. of error. .

C. Tracy, for the plaintiff in error,

cited Brill v. Flagle r, ( 23 Wend. 354 , 356,) and Cowen & Hill’s Notes to Phill. Ev. 759 to 763.

C. B. Gay, for the defendants in error,

relied principally upon. Sills v. Brown, (9 Carr. & Payne, 601.)

The common pleas were clearly correct. The case of Sills v. Brown, (9 Carr. & Payne, 601,) on the authority of ivhich it is said, they acted, is very much in point. It is said to be but a nisi prius decision. That certainly takes from its force as a mere authority; but the case is entirely in accordance with the settled principle of evidence that, witnesses cannot be received to give their opinions on the testi/mony of others, except in matters lying peculiarly, within the knowledge' of experts. Clearly this is not so as to the expense of raising and repairing a canal boat. (See also The People v. Rector, 19 Wend. 573 , 576.) The principle of the decision in Norman v. Wells, ( 17 Wend. 136 , 161,) is more directly applicable; , True; the witnesses who were allowed in that case -to give their opinions as to the amount of damages,. were not claimed to be experts; but the general ground was taken that, on this head, witnesses are to-give particulars, on which the jury are to. compute the allowance. Surely nothing-is more easy than to show the bill of expense in raising and repairing a

p. 605

canal boat, if the injured party will take the least pains. No pretence exists for the necessity which authorizes a resort to opinion. But the argument in the case last cited goes to the point that even where the damage is incapable of computation, the party shall be confined in evidence to such particulars as may be in his power,' the amount to lie fixed by the jury.

Judgment affirmed.

Cases cited

Norman v. Wells 17 Wend. 136 N.Y. Sup. Ct. at 161 p. 604