§ 1053. Custom and usage

It is competent for any witness, having personal knowledge of the facts, to state what services are generally performed by firemen in a railroad yard.57

Where a person has lived several months on a farm, near a railroad crossing of a public highway, and his business requires him to cross the track frequently, and he is able to tell the time the regular trains pass the crossing, he is competent to testify whether a particular train is an irregular or extra one.5

58

In an action against a carrier for damages from delay in the transportation of cattle, witnesses who from past experience are familiar with such transportation may properly testify to the usual time required to make such shipments.59

It must be shown that the witness has knowledge of the subject about which he is asked to testify."0

§ 1054. Habits and nature

A witness may state the result of his experience as to the habits and nature of animals.1

§ 1055. Ownership

Ownership of personalty, being ordinarily a simple fact, to which a witness having the requisite knowledge can testify directly, testimony as to who is the owner of property involved in replevin, involving a fact clearly within the knowledge of the witness, and not the expression of an opinion upon facts proved, is admissible; 62

57 Missouri Pac. Ry. Co. v. Mackey, 6 P. 291, 33 Kan. 298. 58 Missouri Pac. Ry. Co. v. Stevens, 12 P. 25, 35 Kan. 622. 59 Dickinson v. Seay (Okl.) 175 P. 216.

60 In an action against a city for personal injuries to plaintiff, alleged to have been caused by a defective sidewalk, defendant offered to prove by its street commissioner the customary price in the city of putting down a certain kind of sidewalk, and how much a good workman could put down. Held, that the evidence was properly excluded, as no knowledge of the witness on the subject was shown. City of Ft. Scott v. Canfield, 26 P. 697, 46 Kan. 322.

61 An opinion of a witness that the horse "seemed to be frightened" is admissible, under the rule admitting opinions from necessity. Bartlesville Interurban Ry. Co. v. Quaid, 51 Okl. 166, 151 P. 891, L. R. A. 1918A, 653.

Admission of testimony of a farmer who had observed the habits of horses that, as a rule, young horses were afraid of openings such as are found in railroad trestle bridges held not error. Dannenberg v. Missouri Pac. Ry. Co., 96 Kan. 708, 153 P. 504.

62 Jantzen v. Emanuel German Baptist Church, 112 P. 1127, 27 Okl. 473, Ann. Cas. 1912C, 659.

A witness may testify as to who is the owner of personalty where such tes(977)

HON.PL.& PRAC.-62

but witnesses can not give their opinions on an issue of ownership of personal property."

In ejectment, a question whether the witness had ever parted with his interest in the land in controversy was properly excluded as calling for a conclusion.64

§ 1056. Agency

Evidence that a party is or is not an agent is a mere conclusion, but a witness may state facts concerning transactions between him and the principal, leaving the court and jury to determine the exist ence of agency.65

§ 1057. Handwriting

Where a witness testifies that he is familiar with the signature of a certain person and would know it anywhere, his testimony to a signature purporting to be that of the person is admissible.

66

A witness who was not present when an instrument was signed, and had no knowledge of the handwriting of the party signing it, is incompetent to prove the signature."7

§ 1058. Identification

It is possible that a typewritten letter may have about it such peculiarities as shall enable one who has received several letters written thereon which he knows come from the one whose typewritten signature is attached thereto, to identify such letter.68

A witness who knows a certain animal may testify to its identity.69

timony involves a fact, and is not a mere expression of opinion. Ft. Smith & W. R. Co. v. Winston, 136 P. 1075, 40 Okl. 173.

A party claiming title to personalty may testify as to who is its owner. First Nat. Bank of Hays City v. Robinson, 144 P. 1019, 93 Kan. 464, L. R. A. 1915D, 134.

Where the main question at issue is the ownership of a chattel, it is not competent for a witness to testify in general terms that the plaintiff is the owner. Hite v. Stimmell, 25 P. 852, 45 Kan. 469.

63 Brown v. Cloud County Bank, 42 P. 593, 2 Kan. App. 352.

64 Work v. Work, 156 P. 236, 90 Kan. 683.

65 Ford Motor Co. v. Livesay, 61 Okl. 231, 160 P. 901.

66 Arthur v. Arthur, 17 P. 187, 38 Kan. 691.

67 Arthur v. Arthur, 38 Kan. 691, 17 P. 187.

68 Huber Mfg. Co. v. Claudel, 80 P. 960, 71 Kan. 441.

69 A witness properly qualified is competent to prove the identity of a hog. Lawton v. Shepard, 130 P. 135, 36 Okl. 772.

§ 1059. Dangerous and safe conditions-Negligence

A witness may not give an opinion on the ultimate fact which the jury has to decide.7°

70

Where one of the main questions in issue is the negligence of those in charge of a business, the opinions of witnesses as to whether or not such persons had exercised due diligence are inadmişsible.71

70 A witness may not give an opinion on the ultimate fact that the jury has to decide, whether the cause of the trouble preventing a contractor drilling a well was insufficiency of the casing, for which the owner was responsible, or matters for which the contractor was responsible. Augusta Oil, Gas, Mining & Prospecting Co. v. Independence Drilling Co., 101 P. 1072, 80 Kan. 261.

The distance that hand cars running on the same track should be kept apart, under certain circumstances, in order to protect the men against danger, is a question for the jury to determine, upon evidence, of all the facts, rather than by the opinion of a witness. Atchison, T. & S. F. R. Co. v. Chance, 45 P'. 60, 57 Kan. 40.

Sidewalks and street crossings.—It is error to permit a witness to give his opinion that a sidewalk is dangerous; but where, immediately before, he had described it at length, and from such description no other inference could have reasonably been drawn than that it was dangerous, such evidence will be presumed harmless. City of Topeka v. Sherwood, 18 P. 933, 39 Kan. 690.

It is error, in an action against a city for personal injuries caused by a defective crossing, to permit witnesses not shown to have particular knowledge with reference to street crossings to give their opinions as to whether the crossing was dangerous. City of Junction City v. Blades, 41 P. 677, 1 Kan. App. 85.

The opinion of a witness, who had constructed and repaired sidewalk crossings elsewhere, that the crossing was not in a proper condition, or that certain repairs were required, held improperly admitted, where the matters were

71 Insley v. Shire, 39 P. 713, 54 Kan. 793, 45 Am. St. Rep. 308.

A bridge where a brakeman lost his life was so described and photographed that the jury could thoroughly understand its character and condition. Railway employés were permitted, over objection, to give their opinions as to such bridge being a safe place to work. Held error, as the jury could not from such opinions have received any assistance in arriving at a proper conclusion. Duncan v. Atchison, T. & S. F. Ry. Co., 119 P. 356, 86 Kan. 112, 51 L. R. A. (N. S.) 565.

Cattle guards. On an issue whether a railway company was negligent in failing to construct a cattle guard at a highway, it is error to permit witnesses to testify that in their opinion a guard maintained at such place would be dangerous to railway employés. Chicago, R. I. & P. Ry. Co. v. Clonch, 43 P. 1140, 2 Kan. App. 728.

Upon the question of whether the cattle guards were proper and sufficient to complete the inclosure, and prevent domestic animals crossing the same, th opinions of witnesses are not admissiole. St. Louis & S. F. Ry. Co. v. Ritz, 6 P. 533, 33 Kan. 404.

An experienced railroad man, familiar with coal cars and the work of making up freight trains, may give his opinion regarding the proper position or proper steps for an employé of the railway company to take in order to pass from a box to a coal car when the same are in motion.72

Testimony of one who is experienced or is an expert is admissible as to the safe method of oiling machinery,73 or to prove the duty of a miller in operating machinery."

§ 1060. Competency and skill

It has been held error to permit a witness to give his opinion as to one's competency and skill.76

Subdivision II.-Expert Testimony

§ 1061. Subject-matter

Opinions of experts are admissible with reference to an ultimate fact in issue, where the subject can be presented to the jury so that

within the comprehension of a jury under the evidence. Martin v. City of Columbus, 143 P. 421, 93 Kan. 79.

In an action against a city for personal injuries sustained by plaintiff falling in consequence of an alleged defective area way, trapdoor, and sidewalk upon one of the principal streets of the city, the court permitted plaintiff, over objection, to introduce in evidence the opinion of a large number of witnesses, some of whom were expert carpenters, and others not shown to be experts, or possessed of any peculiar skill, who had seen the area way, trapdoor, the supports thereto, and the sidewalk, and such witnesses were permitted to testify that, in their opinion, "the trapdoor was not properly constructed," that “it was in a bad condition," that "it was not constructed right," that "it seemed to be unsafe," and similar expressions. Held, that the admission of such testimony, calling for the opinion and conclusion of such witnesses, was prejudicial error; that in such cases, where the relation of facts and their probable result can be determined without special skill or study, the facts must be given, and the jury left to draw their own conclusions. City of Holton v. Hicks, 58 P. 998, 9 Kan. App. 179.

72 Missouri, K. & T. Ry. Co. v. Merrill, 60 P. 819, 61 Kan. 671.

73 In an action for injuries to a servant while oiling machinery, testimony of an expert as to the safe method of oiling the machinery is admissible. Burk v. Hobart Mill & Elevator Co., 48 Okl. 470, 150 P. 458.

74 In an action under Rev. St. Mo. 1909, § 7828, requiring guarding of machinery, testimony of experienced millers was admissible to prove the ordinary duty of a miller when a corn mill chokes in operation. Baillod v. Nelson Grain Co., 145 P. 895, 93 Kan. 775.

75 On an issue as to the competency and skill of a coemployé of plaintiff, it is error to permit a witness to give an opinion as to his skill and competency. Cherokee & P. Coal & Mining Co. v. Dickson, 39 P. 691, 55 Kan. 62.

it is capable of drawing the ultimate inference.76 They are admissible whenever the subject of inquiry is such that the jury are unlikely to form a correct judgment upon the matter without such assistance; the value of such evidence being for the jury."

Expert testimony is inadmissible to prove ultimate facts which the jury itself should determine.78

Expert testimony should be excluded, where all of the facts are.

76 Root v. Cudahy Packing Co., 129 P. 147, 88 Kan. 413, rehearing denied 129 P. 1199, 89 Kan. 8.

In action for personal injury in crossing accident, a physician's testimony that from patient's statements her jump out of a wagon would have been sufficient to produce her miscarriage was not objectionable as invading jury's province by stating what did in fact cause the miscarriage. Ft. Smith & W. Ry. Co. v. Hutchinson (Okl.) 175 P. 922.

In action for injury to an employé from failure to guard a machine, as required by Factory Act, testimony of expert, who not only gave facts on which he based his opinion, but who fairly demonstrated practicability of safeguarding machine, was not objectionable as being testimony to ultimate facts in issue. Hockman v. Sifers Candy Co., 104 Kan. 94, 178 P. 254.

77 Chicago, R. I. & P. Ry. Co. v. Pruitt (Okl.) 170 P. 1143.

Testimony of skilled electrician as to diffusion of lights from lamps where accident happened, and of similar lights and the shadows created thereby, is competent on question of sufficient lighting. Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356.

78 Healer v. Inkman, 146 P. 1172, 94 Kan. 594.

Whether an order given the injured employé to clean gin machinery was a continuing one and required a continued future observance held not a proper subject for expert testimony. Choctaw Cotton Oil Co. v. Pope, 47 Okl. 383, 148 P. 170.

In an action on an accident insurance policy defended on the ground of misrepresentations by the insured, insurance experts may not state that facts suppressed or falsified were material and that the policy would not hav› been issued if the truth had been known, but they can state the usage of insurance companies in respect to charging higher rates or canceling policies when made aware of the particular facts in question. Continental Casualty Co. v. Owen, 38 Okl. 107, 131 P. 1084.

It is not error to refuse to permit an expert in handwriting to testify from an examination of the will, and an erasure therein, that a person who wrote with a nervous hand was unable to make such an erasure, though the witness might properly testify that the hand of the person who wrote the will was nervous and unsteady. Scott v. Thrall, 95 P. 563, 77 Kan. 688, 17 L. R. A. (N. S.) 181, 127 Am. St. Rep. 449.

The general duties of a ureman on a switch engine in a certain trackyard at a stated time is not a matter which is the subject of expert testimony, and upon which an opinion may be given, but is a question of fact which may be testified to by any witness having personal knowledge thereof. Missouri Pac. Ry. Co. v. Mackey, 6 P. 291, 33 Kan. 298.

The opinion of an attorney regarding the title to a tract of land which