Ferguson v. Hubbell.

the exclusion of such evidence, it is not needed that the jurors should be able to see the facts as they appear to eye-witnesses or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them, and comprehend them sufficiently for the ordinary administration of justice.

The rules admitting the opinions of experts should not be unnecessarily extended. Experience has shown that it is much safer to confine the testimony of witnesses to facts in all cases where that is practicable and leave the jury to exercise their judgment and experience upon the facts proved. Where witnesses testify to facts they may be specifically contradicted, and if they testify falsely, they are liable to punishment for perjury. But they may give false opinions without the fear of punishment. It is generally safer to take the judgments of unskilled jurors than the opinions of hired and generally biased experts. A long time ago in Tracy Peeruge, 10 Cl. & Fin. 154, 191, Lord CAMPBELL said, that skilled witnesses came with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence. Without indorsing this strong language which is however countenanced by the utterances of other judges and of some text writers, and believing that opinion evidence is in many cases absolutely essential in the administration of justice, yet we think it should not be much encouraged and should be received only in cases of necessity. Better results will generally be reached by taking the impartial, unbiased judgments of twelve jurors of common sense and common experience than can be obtained by taking the opinions of experts, if not generally hired, at least friendly, whose opinions cannot fail generally to be warped by a desire to promote the cause in which they are enlisted.

From a careful examination of many cases in this and other States, we are satisfied that the questions objected to in this case should have been excluded.

In Fraser v. Tupper, 29 Vt. 409, in an action like this, a question entirely similar to this, was held to be inadmissible. That the defendant offered to prove by farmers who were acquainted with the clearing of land by burning the same, and who were upon the land the day the fires were set, and who described to the jury, as

source.

Ferguson v. Hubbell.

well as they could, the position of the fire and the force and direction of the wind, that in their opinions it was a suitable and proper and safe day for setting the piles on fire with reference to the position of the piles in respect to the plaintiff's coal, and the force and direction of the wind. To this evidence the plaintiff objected, and it was excluded by the court, and to its exclusion the defendant excepted, and it was held that the ruling was proper. In the opinion of the court it is said: "There could be no difficulty in this case in the witnesses stating to the jury the position of the fires which were set by the defendant, their number and magnitude, the direction and course of the wind, the position, distance and character of plaintiff's property and its exposure to injury from that The jurors, upon the question whether the defendant exercised proper care, could form as definite an opinion, from the facts stated by the witnesses, as the witnesses themselves. The subjectmatter is not one of science or skill, but is susceptible of direct proof, and in most cases the triers themselves are qualified from experience in the ordinary affairs of life, duly to appreciate the material facts when found. If there is any materiality attached to the force of the wind on that day, we do not see any difficulty in conveying a true idea of it sufficient at least for all practical purposes. In Higgins v. Dewey, 107 Mass. 494, s. c., 9 Am. Rep. 63, the action was also like this, and the defendant offered to prove by a surveyor and civil engineer of many years' experience in clearing land by fire, who had observed the effects of wind on fires in different localities, and had been upon the land where the defendant set his fire and made a plan of it and was acquainted with the surrounding country, that there was no probability that a fire set under the circumstances in the case as described by the witnesses would be communicated to the plaintiff's land; but the judge excluded the evidence, and his ruling was held to be proper on the ground that the evidence offered related to a subject within the common knowledge of the jury. In Luce v. Dorchester Mutual Fire Ins. Co., 105 Mass. 297; s. c., 7 Am. Rep. 522, the action was to recover for a loss on a policy of insurance against fire upon a dwellinghouse which the plaintiff had left unoccupied at the time of the loss and for some time before; and the opinions of witnesses, that leaving a dwelling-house unoccupied for a considerable length of time increased its liability to be destroyed or injured by fire, were held to be inadmissible, on the ground that the subject

Ferguson v. Hubbell.

was within common knowledge. In Sowers v. Dukes, 8 Minn. 23, the action was to recover for a breach of contract in neglecting to build and keep in repair a fence around a certain field, whereby plaintiff's crops were injured. Upon the trial the plaintiff, a witness in his own behalf, was asked this question: "Was the fence a proper fence to turn stock, and could they easily put their heads through between the fence and rider?" This question was objected to on the ground that the jurors were the proper judges as to whether the fence was sufficient after it had been described. The objection was overruled and the witness was permitted to answer; and the question was held to be incompetent, and the judgment was reversed for that reason. It was held that the witness should have stated the facts; that the jury should have based their judgments upon the facts, and that it was not a proper subject for opinion evidence. In Enright v. S. F. & S. J. R. Co., 33 Cal. 230, in a suit against the defendant for injury to plaintiff's cattle caused by an insufficient fence, it was held that the evidence of farmers that the fence was sufficient to turn cattle was improper. In Bills v. City of Ottumwa, 35 Iowa, 109, the defendant was sued for injuries to the plaintiff alleged to have been sustained in consequence of the bad condition of the street which caused him to be thrown from a wagon loaded with hay; and it was held that the opinion of a farmer, that a wagon loaded in the manner in which the one was upon which the plaintiff was riding was not safe for riding upon over ordinary roads, was inadmissible. In Concord R. v. Greely, 23 N. H. 237, in a proceeding to assess damages for a right of way for a railroad, it was held that the opinion of a farmer as to the effect upon a farm of a railroad passing through it was inadmissible. In Paige v. Hazard, 5 Hill, 603, in an action for negligence in injuring and sinking a canal boat, the plaintiff, after proving the cause of action as alleged, called a witness who testified that he 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, and he was then asked the following question: "From the description of the situation of the boat as given by the witnesses, what would the damage be?" and it was held improper and that the witness' answer was inadmissible. In Teall v. Barton, 40 Barb. 137, the action was brought to recover damages caused by fire communicated by a steam dredge, and it was held that a question put to a witness who had had experience,

Ferguson v. Hubbell.

as to whether he considered it dangerous to use a steam dredge without a spark-catcher, was properly overruled, it not being a question of science or skill, and not falling within the rule relating to evidence by experts. In McGregor v. Brown, 10 N. Y. 114, the action was by a landlord against his tenant for waste; and it was held that the opinions of witnesses, that the acts complained of were not injurious to the inheritance, and therefore not waste, were inadmissible.

In all these cases it was held that the witnesses should be confined to a statement of the facts, and that it was the province of the jury to draw inferences and form judgments. In most of them it was as probable as it was here that some of the jurors might not know as much about the subject of inquiry and not be as capable of forming opinions or drawing inferences from the facts as the witnesses; and yet it was held, as the subjects of inquiry were of such a nature that jurors generally might be presumed to have sufficient knowledge of them to enable them to discharge their duty when the facts were placed before them, that it was safer to rely upon them than upon the opinions of witnesses however expert they might be. Here the subject of inquiry related to the common elements of fire and wind and dry wood and brush and timber with which every man has some acquaintance; and whether under all the circumstances it was a safe, prudent or proper act to set a fire, a jury with the common experience which if not all men, most men have, would be sufficiently competent to form an opinion. This is not a case where it was impossible to place the facts before the jury. The character of the wind, the condition of the soil as to being dry or not, the character of the brush and timber, the nature of the ground, the distance, exposure, every thing, could be proved so that the jury would have substantially as correct knowledge in reference to it as the witnesses; if not as correct, they could acquire knowledge sufficiently correct to enable them to discharge their duty as jurors.

We have carefully examined the numerous cases cited in reference to this evidence in the brief of the learned counsel for the defendant, and none of them sustain its admission. They show that farmers may be permitted to give their opinion of the value of farms, and farm stock, and produce; that witnesses may give their opinions on questions of identity, or whether a person is under the influence of liquor, and as to many other matters. There is a broad range for expert evidence, but none of the authorities go far enough

Ferguson v. Hubbell.

to hold that this evidence is within the proper range. The question of expert evidence was not involved in the case of Hays v. Miller, 6 Hun, 320, and 70 N. Y. 112. The action in that case was brought to recover damages caused by fire to the lands of the plaintiff's in-. testate, through the alleged negligence of the defendant; and the referee, instead of passing upon the question of negligence directly as one of fact, made special findings of the circumstances, and from those found negligence as a conclusion of law, and he ordered judgment in favor of the plaintiff. The question under consideration upon the appeal was whether the inference of law was justified by the facts found. The appellant claimed that it was the duty of this court to review the conclusion of the referee, and decide, as matter of law, whether the facts and circumstances found by him established that the burning upon the defendant's land was conducted in an improper and negligent manner, or at an improper time and season, or whether it was conducted in a proper manner and at a proper time; and we held that this court was not competent to draw the conclusions and inferences from the facts; that that was a matter for the referee, and that we were concluded by the inferences and conclusions drawn from the facts by him; and in discussing that question some language was used by the judge writing the opinion in this court, which, it is claimed, favors the contention of the respondent here that these questions were proper to elicit expert evidence. But as we have seen, the learned judge writing the opinion did not have in mind the subject of expert evidence, and was simply discussing the competency and power of this court to draw inferences from facts and circumstances found by the referee; and it was held, as we always hold in such cases, that the inferences are for the triers of facts.

We are therefore constrained to reverse this judgment and grant a new trial, as we think an important rule of evidence was violated. To uphold the propriety of these questions would carry the rule of expert evidence further than it has ever been carried in this State, and would be an unwarranted invasion of the rule which confines witnesses to facts, and excludes their opinions. It is important to maintain the rule in its integrity, and to permit as few invasions of it as the proper administration of justice will allow.

The judgment should be reversed and a new trial granted, costs to abide event. Judgment reversed.

All concur except MILLER, J., dissenting.

VOL. XLIX-70