Railway Co. v. Thomason

26 S.W. 598, 59 Ark. 140, 1894 Ark. LEXIS 37

• Court: Supreme Court of Arkansas
• Decided: May 12, 1894
• Status: Published

Opinion

Wood, J.

Appellee obtained judgment against appellant for $85, for killing and injuring stock. The record shows: “The defendant, in open court, agreed to admit that the plaintiff’s horse was of the value of $75, and that same had been killed as alleged, and that plaintiff’s mule was struck by defendant’s train at same time and place, and damaged to the extent of ten dollars, and offered to take the burden of proof. Thereupon, without objection, defendant proceeded to pass upon the jury; and, having passed upon same, plaintiff also passed upon the jury, and, also without objection from plaintiff or his counsel and under the direction of the court, defendant proceeded to state his cause to the jury ; and thereafter plaintiff by counsel stated his cause to the jury. Thereupon defendant, without objection of plaintiff, and under the direction of the court, introduced its proof.” And, after the proof was in, the record recites that “the attorney for the railway company asked leave to make the opening and concluding arguments to the jury, but the court refused to allow him to do so, and ruled that the attorneys for the plaintiff were entitled to open and conclude the argument ; to which the defendant by attorney at the time excepted.” This is the last ground of the motion for new trial.

1. When defendant entitled to open and close.

1. The admission of appellant upon the record was equivalent to an abandonment of that part of his answer denying the killing. The injury being admitted, the law makes it prima facie negligent. L. R. etc. Ry. v. Henson, 39 Ark. 413. The appellant having also admitted the extent of the injury, had no proof been introduced, the verdict should have been for appellee, i. <?., the appellant would have been defeated. Mansf. Dig. 2871. After the appellant, under the direction of the court, and by the acquiescence of the appellee, had taken the initiative in passing upon the jury, stating the case and introducing the proof, there should not have been a “change of front” at the critical moment when it expected the only reward for its admission, to-wit: the right to begin and conclude the argument. Mansf. Digest, sec. 5131; Rogers v. Diamond, 13 Ark. 474-79.

% Admissibility of opinion of non-expert.

2. A witness was asked : ‘ ‘ Have you noticed how far a head light throws a light forward to the right and left?” and answered, “Yes, somewhat.” “How far does it throw a light forward, and how wide a space does it light? ” Ans. “It would throw a light about 100 yards in front, I think, and cover a space from fifty to 100 feet wide, I suppose. I never was on an engine at night. The closer the engine, the narrower the light, I suppose; and the further from it, the dimmer. The light is concentrated ahead, and does not fall on the track close to the engine.” The admission of this testimony is assigned as error. We can see nothing in the distance or range of the reflection of light by the head light of an engine calling for the exercise of peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to qualify a person to understand it, and to testify about it intelligently. The witness was testifying to matters of fact which he says he had observed, and about which men of common understanding might be informed upon observation. Any person cognizant of the facts upon which he bases his judgment may give his opinion on questions of identity, size, weight, distance and time. Such questions are open to all men of ordinary information. The evidence is competent. Its weight is for the jury. 1 Green-leaf. Fv. sec. 440, note a; Com. v. O'Brien, 134 Mass. 198; 1 Smith’s Lead. Cas. 286, note.

3. The court did not err in refusing requests for instructions. It had declared the law correctly upon the propositions which appellant asked, since the killing was admitted, and repetition was unnecessary and improper. For the error in denying appellant the right to open and conclude the argument, the judgment is reversed, and cause remanded. Tobin v. Jenkins, 29 Ark. 157; Mann v. Scott, 32 ib. 593.