FOLSOM v. RAILROAD

Greenleaf K. Bartlett and Edwin G. Eastman, for the plaintiff.

Frank S. Streeter (with whom were Joseph W. Fellows and John S. H. Frink), for the defendants. We desire to call attention to two questions: (1) The admission of the so-called expert testimony; and (e) the motion for a nonsuit.

Subject to exception, the witness testified that a train coming from the rear would be more likely to frighten a horse than one approaching him in front, and that the horse would be likely to manifest more fright when the train was nearly opposite him. This was not an opinion based upon the witness's observation of the transaction or thing in controversy, and so does not come within the New Hampshire rule on that subject. Hardy v. Merrill, 56 N.H. 227, 241. It was an opinion based upon the witness's general knowledge and experience. It was expert testimony, or it was nothing. With all its liberality, we do not understand that the New Hampshire rule goes to the extent of permitting non-experts to give opinions based upon facts learned from the testimony of others. In order to entitle one not an expert to give his opinion, he must have personally observed the transaction as to which he testifies.

Our objection to the testimony is that it was not given on a question which is a proper subject for such evidence. "Upon subjects of general knowledge which are understood by men in general, and which a jury are presumed to be familiar with, witnesses must testify as to facts alone, and the testimony of witnesses as experts merely is not admissible." Jones v. Tucker, 41 N.H. 546, 547. This fairly states the general rule. How has it been applied by the courts? In Concord Railroad v. Greeley, 23 N.H. 237, it was held that the question of the effect of a railroad passing through a farm was not a proper one for such testimony. "The testimony of experts that leaving a dwelling house unoccupied for a considerable time was an increase of risk was rightly rejected," as it "was a subject within common knowledge." Luce v. Insurance Co., 105 Mass. 297. To the same effect are Mulry v. Insurance Co., 5 Gray 541, and Thayer v. Insurance Co., 70 Me. 531, 539.

Whether placing staves upon the top of an arch to dry is a safe way to use a dry-house (White v. Ballou, 8 Allen 408); whether a sleigh runner crossing a track at a certain angle could have been caught (Tuttle v. Lawrence, 119 Mass. 276, 279; Patterson v. Colebrook, 29 N.H. 94); whether a boat was hung in such a position that it would be manifestly unsafe to get into it (Simmons v. Steamboat Co., 97 Mass. 361, 371); whether a brush fire set in a certain way would probably spread (Higgins v. Dewey, 107 Mass. 494, 496); whether a certain construction of a building increased the risk of fire (Insurance Co. v. Cotheal, 7 Wend. 72, 77, 79); whether a building is so situated as to be likely to communicate fire to another building (Railroad v. Kellogg, 94 U.S. 469, 472, 473); whether a fence was sufficient to turn stock (Enright v. Railroad, 33 Cal. 230; Sowers v. Dukes, 8 Minn. 23), are not questions for expert testimony.

The question here is not as to the admission of the opinion of a witness based upon what he saw, but as to what is a proper subject for expert testimony. If the facts considered in the foregoing cases are matters of common knowledge, it seems to us that the effect upon a horse of a railway train approaching from the rear must be equally so.

This evidence was introduced, not to show that the horse was frightened, but to create a situation which might account for what the decedent did. It was offered "as bearing upon the action of Mr. McMurphy as exercised there. The appearance of the horse when the train first blew the danger signal might not indicate what the horse would do when the train got nearly abreast of him." From this testimony the jury were asked to infer, not that the horse was frightened, but that he would have been frightened if McMurphy had stopped; and having drawn this inference, to further find that it was not negligent to drive on. It was, in substance, allowing the witness to testify that it would not have been prudent to stop. Or, to put it in the form the question went to the jury, it allowed the witness to testify that in his opinion the decedent was not negligent. This was the question for the jury. They were to determine what the average man would do under like circumstances. In that determination they were to use their own average judgment and not the fine-spun theory of some so-called expert. However excellent the judgment of the witness rosy have been, it could not be used to assist the jury in the discharge of their duties.

We ask that the motion for a nonsuit be granted because of lack of evidence of care on the part of the decedent. The plaintiff's claim, based upon Lyman v. Railroad, 66 N.H. 200, that in order that the court should grant this motion it must conclusively appear that the plaintiff was negligent, is but another way of stating the rule as laid down in the earlier cases. The motion should be granted when there is no evidence from which it. could fairly be found that the plaintiff was in the exercise of due care.

In this case the whole transaction was testified to by an eyewitness. From the testimony it appears that the decedent was driving an old horse over a road he was familiar with; that while the horse was somewhat afraid of cars, he had never been unmanageable when near them; and that the decedent knew of the approach of the train long before there were any signs of fright exhibited by the horse. An unsuccessful attempt to cross in advance of the train meant certain death. McMurphy needed no time for reflection to reach that conclusion. He was a cattle trader of many years experience. The inexperience of youth cannot be advanced as an excuse for his folly. As the plaintiff says, the situation required the exercise of discretion, judgment, and experience, and the evidence showed that the decedent was one from whom all this could rightfully be demanded. But it does not follow that because this was the situation, the case must go to the jury, no matter what the evidence showed. The exercise of judgment and discretion was an essential part of the plaintiff's case, as it is in every negligence case where the parties are present and acting at the time of on accident. If there is no evidence of the exercise of judgment and discretion, then there is none of the exercise of due care. Under these circumstances and with this duty resting upon him, what did the decedent do? There were many courses open to him. He might stop his horse and control him as best he could while the train passed. This could not have been a difficult feat for one of his skill and experience. The claim that the danger of a runaway accident was of sufficient gravity to justify him in driving in front of a moving train "would hardly be relied upon if the defendant were not a corporation," and would be "regarding that as sufficient evidence to justify an action which would not be so regarded in a suit between two natural persons." Hanley v. Railway, 62 N.H. 274, 282. Recognizing the force of this position, the plaintiff argues on the theory of what might have happened if the horse had bolted. The sufficient answer to that is that it was shown by the testimony of several witnesses that the decedent had owned this horse for many years, had made a practice of driving him near the cars and over this very street, and that while he sometimes exhibited signs of fright when the cars "came up alongside of him," and was "reasonably afraid," the decedent had always been able to control him. There was, then, no evidence on which to base the claim that McMurphy might reasonably believe the horse would bolt. It was his plain duty to stop. He disregarded that duty, and therefore should not recover damages from the defendants. "To be sure, the statute requires a railroad company to give specified warnings, but it neither takes away a man's senses nor excuses, him from using them. . . . The danger may be there, the precaution is simple. To stop, to pause, is certainly safe . . . and if he fails to do so it is of no consequence, in the eye of the law, whether he merely misjudges or is obstinately reckless." Wilds v. Railroad, 24 N.Y. 430.

But suppose we take them on their own ground, and say that when McMurphy heard the train he properly assumed that the horse would bolt. Suppose he rightfully thought what counsel gravely state in their brief, — that the horse might run over the bank wall and into the train which was to terrify him. Was she for that reason justified in running a race for the crossing?

Let us recall the situation as described by the witnesses. McMurphy was seated in an old-fashioned sleigh, jogging along behind an old farm horse. It was a familiar road, for he had been over it about once a week for many years. When more than a hundred feet from the crossing he heard a train, looked over his shoulder, and saw it approaching from the east. The horse was entirely under control, and showed no signs of fright. If it was dangerous for him to remain in the sleigh why did he not stop and take his horse by the bit? It could have been done in an instant; it is done so frequently as to be no novelty to an experienced driver like McMurphy. The worst that could then have happened would have been a trifling runaway accident, an insignificant injury to an old horse and sleigh. There was ample opportunity for McMurphy to escape all possibility of injury. The fact that other safe means of escape were not at hand is no excuse for his not using those available. The situation was not, as claimed by the plaintiff, one of sudden and unexpected danger. If it was half as bad as it is represented, its perils must theretofore have been so impressed upon McMurphy's mind as to cause him to be on the alert for the approach of a train. It was under these circumstances, with this knowledge and experience, that the decedent saw fit to urge his horse on toward the crossing. He understood what he was doing. He repeatedly applied the whip, and the horse responded to that and apparently took no notice of the train. He took his chances and lost. The rule of law whose aid we invoke is plain and unchallenged. Was this evidence such that a fair and reasonable man could find that the plaintiff was in the exercise of due care? Can it be due care for a man in the full possession of his senses to intentionally drive in front of a moving train, when he might have taken another course by which no harm could come to him? We believe that the law is not so unreasonable as this; and we ask the court to apply here the same rule that it has already applied in the "apparent risk" cases, and to hold that it requires something more than proof of an accident, and of the fact that the defendant is a corporation, to entitle the plaintiff to recover damages.