Clinton v. Howard

42 Conn. 294

• Court: Supreme Court of Connecticut
• Decided: April 15, 1875
• Status: Published

Opinion

Pakdee, J.

The defendants move in arrest of judgment for insufficiencies in the declaration upon three points: namely, that -it does not state facts which in law constitute a nuisance; that it does not show that the plaintiff has suffered special injuries; and that it does not appear from the declaration that the special injui’ies alleged are the proximate result of the particular nuisance complained of.

The pleader alleges in the declaration that on a day named the plaintiff was driving his horse harnessed to a wagon along a certain highway; that the horse was perfectly gentle and had previously been free from the vice of shying and running away; that the defendants had theretofore placed a pile of stones, eight feet wide and four feet high, upon a part of the traveled path of the highway; that these stones were then and there a great obstruction to public travel, a great nuisance and a source of danger to people and horses traveling on the highway at that place; that as the horse of the plaintiff came up to and near the pile, he was frightened by it, and rapidly shied off and away from it, and thereby drew the plaintiff’s wagon rapidly and violently against another wagon, whereby his own was broken and himself thrown upon the ground and his horse injured.

The defendants say that the indispensable allegation that the pile was an object calculated to frighten horses of ordinary gentleness is not to be found herein; but we must hold that by a fair and reasonable intendment, its full equivalent is contained in the allegation that, as a matter of fact, it did frighten a perfectly gentle horse. That such an object within the limits of a highway may be a nuisance this court has determined in Dimock v. Town of Suffield, 30 Conn., 129, and Ayer v. City of Norwich, 39 Conn., 376, and that independently of any collision with it. In the latter case the court said (p. 381):—“If I strike a horse and cause him to run, whereby persons in the carriage are injured, I am liable in trespass for all the damage. If’ by my negligence I frighten him and thereby cause injury, I am liable in case. • If a town or other corporation by its negligence produces the same result, why should it not be liable? We must confess we are unable to discover any good reason for holding towns liable for injuries caused by collision and not liable for injuries caused by fright. The cause and effect in each case being the same, the manner and detail are unimportant.”

Again, it is said that the declaration does not show that the plaintiff has suffered special injuries, or injuries beyond those suffered by the public in general. An individual who receives bodily hurt or suffers a damage to his horse or carriage in consequence of a direct collision with an obstruction in the highway, is specially damnified and may maintain an action against the author of the obstruction; and it is judicially settled that injuries which are the proximate result of frightening a horse by and away from an object in the highway, are not in law to be distinguished from injuries occasioned by actual collision with it, there being the proper allegations in the declaration.

Upon the motion for a new trial the defendants claim that the court erred in allowing the following question to be put to George W. Clinton, namely, “ Whether an object like this pile of stones would be likely to make an ordinarily gentle horse shy.”

While it is the general rule that the opinions of witnesses are not evidence, there are certain classes of exceptions to it, in which such opinions are admissible in connection with facts testified to, on which they are founded. Certain instances of such exceptions are noticed in the following decisions made by this court. In Porter v. Pequonnoc Manufacturing Co., 17 Conn., 249, the question was whether a certain dam was capable of sustaining the water accumulated by it suddenly in time of a freshet. Upon that point the court received the opinions of witnesses who had no peculiar-skill in the mode of constructing dams, but who were acquainted with the stream and who knew the height of the dam and depth of the pond. The court said: “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 upon 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 connection with the facts testified to by them, would be to close an ordinary and important avenue to the truth. * * * 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.” In Dunham’s Appeal from Probate, 27 Conn., 192, this court said: “We never allow the mere opinion of the witness to go to the jury if objected to, unless the witness is an expert and testifies as such, where the jury from want of experience or observation are unable to draw proper inferences from facts proved. But where a witness speaks from his personal knowledge, and, after stating the facts, adds his opinion upon them, or .in a certain class of cases gives his opinion without detailing the facts on which it is founded, his testimony is received as founded, not on his judgment, but on his knowledge. * * * * So a witness may state that a certain road is or is not in repair, or that a certain bridge is sound and safe or otherwise, or that a farm or horse is worth so much, without going into the particular facts on which he founds his opinion, these facts being known to him personally. He only states the result of his own observation and knowledge.”

The case called upon the plaintiff to satisfy the triers that the pile of stones was calculated to frighten horses of ordinary gentleness. The witness was accustomed to the use of horses; ho knew their characteristics; he had observed the effect produced upon them by the sight of piles of stones and other similar objects; his -knowledge based upon experience and observation, while not in the highest sense professional or scientific, yet was of the kind and degree which all jurors cannot be presumed to have; he had seen the pile of stones in question; he was present at the time and place of the accident and was an eye-witness of the fact that the stones did frighten the horse and put him suddenly beyond the control of the plaintiff, thereby bringing his wagon in contact with an obstruction and directly producing the injury complained of.

Having testified to his knowledge upon these points and having given the dimensions and location of the pile of stones in reference to the traveled road-way, we think that the reasoning which permits unskilled persons first to state facts within their knowledge and then to base thereon an opinion as to the mental soundness of an individual, as to the sufficiency of a dam to withstand the- pressure of the water which it has detained, as to the safety of a highway, and as to the soundness and strength of a bridge, will permit this witness to give an opinion based upon his knowledge of facts, as to whether this pile of stones was calculated to frighten gentle horses. It would be difficult, if not impossible, to embody in words, so as to be fully understood by the triers, a description of all the appearances which make a particular pile of stones a source of terror to gentle horses unaccustomed to the sight of such an object. The fright is the result of a combination of form, color and relative position, which would elude the effort of any witness clearly and fully to describe. Knowledge of the reasons why one object arouses the instinct of fear in a horse and another does not, and why the pile of stones in question should be put in one class or the other, is not presumptively within the knowledge of all jurors. To give to a juror who has neither had experience nor made observations upon the point, the dimensions of an object, and compel him to find therefrom alone that it would or would not frighten gentle horses, is to close other ordinary and important avenues to the truth.

Again, it is said that the court erred in permitting the plaintiff to answer the following questions: 1st, “What objects usually make horses shy according to your experience ?” to which he answered, “ I think anything new put in the road would cause almost any horse to shy.” 2d, “ State whether or not the pile of stones on the road, that you saw, (referring to the time of the accident,) was or was not a new object to your horse, to the best of your knowledge;” to which he answered, “ I think it was a new object.” These questions, in form, called for answers founded upon knowledge, and were in this respect unobjectionable. The information sought for bore upon the issue as it tended to prove the specific reason why the pile of stones became the source of the fright. In so far as the answer to the first question has in it an element of opinion, it is admissible for reasons herein before given. The plaintiff had testified that he had been, accustomed to the use of horses all his life and had owned a great many, and that he was driving the horse at the time of the accident, and he described his conduct on that occasion. Prom knowledge upon all these points thus gained he adds that the fright resulted from the fact that the object was new to the sight of his horse.

Again, it is said that the court erred in allowing the plaintiff to state “ at what places his horse had come near moving trains of cars;” and in allowing him to answer the question, “How was your horse affected by the road-roller.”

It was a part of his case to prove the allegation that he was driving a gentle horse; this made admissible evidence as to his conduct when placed in positions calculated to test his temper and training. Proof was offered as to two instances of this, one that he had been driven near to a moving locomotive and train of cars, and another that he had been driven near to a steam road-roller when in operation, and that he was not frightened by either. Inasmuch as it was conceded that this last was an object of terror to horses of ordinary gentleness, we think the testimony was relevant to the issue and properly received.

The plaintiff was also entitled to the privilege of showing any circumstance of time, place or position which rendered these tests most thorough; and if they were made at a point where the moving locomotive, by reason of its being over his head or beneath his feet, presented itself in a way especially calculated to frighten the horse, this might be shown. Besides, this additional proof as to the place where the test was made was in the direction of fairness to the defendants in giving them an opportunity, if they could successfully use it, to diminish or destroy the value of the experiment. We do not see that the information thus given could put upon them any burden which they should not bear.

Again, it is said that the court erred in allowing this question to be put to a witness, viz: “How extensively was it known in the neighborhood that the horse had run away ?” The plaintiff claimed that one item in the sum total of his damage was this, viz: that the value of his horse had been lessened in the estimation of all persons who had knowledge that he had been frightened and had run away, and that the diminution in value was in proportion to the number who knew the fact. This being so he might show how extensively people had such knowledge. The question called for knowledge only,_and thus was unobjectionable; and as upon the defendants’ brief the objection is made to the question itself, upon that it is not well taken.

The court returned the jury to a second consideration of the case, saying “that although it was the duty of each juror to decide the case upon his individual oath and conscience and not to be influenced by any other considerations than the law and the evidence, yet, as the trial had already occupied the court more than a week and had been a very expensive one, had already cost the State alone about $600 in the expenses of the court, to say nothing of the outlay of the parties, he felt it to be his duty, notwithstanding they had already deliberated so long, to request them to give a further consideration to the case.” To the remark respecting the expense of the trial to the State, the defendants take exception; but, guarded as it is, we cannot in fairness presume that it misled any juror as to his duty. .

The motion in arrest is over-ruled, and a new trial is not advised.

In this opinion Carpenter and Foster, Js., concurred. Park, C. J., dissented as to the admissibility of the opinions of the witnesses, but concurred in other respects. Phelps, J., did not sit.