Spickerman v. Clark

Headnote

Evidence — opinion of loitness — when admissible.

Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. This action was brought to recover damages for injuries sustained by the plaintiff, in consequence of a collision between the tug-boat E. D. Beach, upon the plaintiff, who was at the time employed as engineer, and the boat Charles E. Madden, then owned and operated by the defendants. The only question of interest passed upon by General Term is contained in the following portion of the opinion :

“ The only questions for us arise on the admission of evidence. A witness who had had experience in the management of boats, testified that from what he saw of the occurrence and from his knowledge and skill, he was able to form an opinion whether or not the Madden, by proper care, could have avoided the collision. He was then asked whether in his judgment the collision could have been avoided, by the parties on the Madden using proper care

and caution. This was objected to by the defendants and was admitted.

In Walsh v. Wash. Ins. Go. ( 32 N. Y., 443 ), it was said to be admissible for the master of a vessel to testify to what its loss was attributable. So, in collisions of vessels, a nautical witness may testify whether in his opinion a collision could have been avoided by proper care on the part of the captain. (FennieJc v. Bell, 1 C. & K., 312.) The rule, as laid down in Powell’s Evidence, is that the opinions of skilled or scientific witnesses are admissible evidence to elucidate matters which are of a strictly professional or scientific character. And whether it would be possible for a boat to avoid a collision is a question which certainly involves much professional knowledge. No objection was taken, that the question shopld .have been restricted to the ability to avoid the collision, after the persons on the Madden knew, or might have known, of the danger.”