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jection on the ground that the testi-
mony is the expression of an opinion
is merely an objection to the char-
acter of the evidence and not to the
witness' competency to give it. See
also Brumley v. Flint, 87 Cal. 471,
25 Pac. 863 ; Reed v. Drais, 67 Cal.
491, 8 Pac. 20.

11. McKay v. Lasher, 121 N. Y.
477, 24 N. E. 711, in which case an
expert witness was permitted to make
illustrations upon a blackboard.

Explanation of Machines, Models,
Etc. — Experts may explain to the
court and jury the machines, models
or drawings exhibited, and may,
where such evidence is relevant, point
out the difference or identity of the



BXPBRT AND OPINION EVIDENCE.



553



VI. EXPEETS AND QTIESTIONS FOR EXPERT TESTIMONY

CLASSIFIED.

1. In General. — The courts have given a wide range to expert
testimony. But each question as to the admissibiUty of this class
of evidence must be determined by applying the general principles
which have been hereinbefore stated.^*

2. Accounting, Bookkeeping, etc. — Meaning of Entry. — A duly
qualified expert may testify as to the meaning of an entry in books
concerning business transactions, where the meaning of such entry
is not apparent to the average jury/^

3. Agriculture. — In General. — Expert testimony upon questions
relating to agriculture and all of its various branches is admissible.^*



mechanical devices involved in their
construction. Winans v. New York &
E. R. Co., 21 How. (N. Y.) 88.

Exhibition of Engraved Plates to

Illustrate Testimony In State v.

Knight, 43 ]\Ie. ii, which was a
prosecution for murder, a medical
expert who was present at a post-
mortem examination of the body of
the decedent was permitted, over ob-
jection, to exhibit to the jury certain
engraved plates of the human neck,
and of the bones of the neck, and
also a skeleton of the human neck,
in order to illustrate his testimony
in describing the wounds, and espe-
cially that upon the vertebrae of the
spinal column. In holding that no
error was committed the court said:
" The object of the exhibition of
these plates and bones was to render
the testimony of the witness intelli-
gible and not to make them evidence
of themselves. Maps and diagrams
not claimed to be strictly accurate
are permitted to be used as chalk
for purposes of illustration, and
to make more clear a verbal descrip-
tion."

Use of Model. — Expert witnesses
in testifying on the question of the
alleged negligence of a municipal
corporation for failure to use a de-
vice to prevent the escape of sparks
from the steam roller are properly
allowed to use the model of a loco-
motive to illustrate the use of a
spark arrester and to indicate how
it could be applied to the roller en-
gine where the court cautioned them
that " in so far as the different parts
of this model are similar to those
shown in this model of the steam



roller you may call attention to them,
but the other parts you are not to
mention." McMahon v. Dubuque,
107 Iowa 62, yy N. W. 517, 70 Am.
St. Rep. 143.

12. Van Wycklen v. Brooklyn, 118
N. Y. 424, 24 N. E. 179.

In applying such general principles
the court will be mindful of that
maxim of the general law of evidence
that the rules of evidence must be
adapted to every variety of case or
question which may arise for investi-
gation in a court of justice. Move
V. Herndon, 30 Miss. no.

13. Paxton v. State, 59 Neb. 460,
81 N. W. 383, 80 Am. St. Rep. 689,
in which case it was held that one
who had been state treasurer for
more than two years was properly
allowed to give an opinion as to the
meaning of an entry of the business
transactions in the treasurer's office.
See also Cochran v. United States,
157 U. S. 286, in which case a wit-
ness was called to explain to the jury
the significance of certain entries and
the manner in which reports to the
comptroller were made up.

Effect of Entry of Cash Item,
In Iowa State Savings Bank v. Black,
91 Iowa 490, 59 N. W. 283, it was
held that the cashier was competent
to testify with reference to the mean-
ing and effect of a " cash item "
in the bank's book and to state " that
the effect of it would be that it rep-
resents just that much cash that
ought to be there in the bank."

14. United States. — St. Louis, I.
M. & S. R. Co. V. Edwards, 78 Fed.
745; Missouri P. R. Co. v. Hall, 66
Fed. 868.



Vol. V



554



EXPERT AND OPINION EVIDENCE.



Thus, agriculturists will be permitted to give expert testimony as to
the culture of specified products ;^^ as to what is required to render
the land cultivatable ;^^ as to the qualities and uses of fertilizers;"
as to the supplies required on a plantation ;^^ and as to whether or
not an overseer performed his services well;^^ but a farmer will
not be permitted to give an opinion as to the sufficiency of a fence
to restrain cattle.^"



Alabama. — See Wilkinson v. Mose-
ley, 30 Ala. 562.

Illinois. — Jacksonville A. & iSt.
L. R. Co. V. Caldwell, 21 111. 75-

lozva. — Cathcart v. Rogers, 115
Iowa 30, 87 N. W. 738; Hunter v.
Burlington, C. R. & N. R. Co., 84
Iowa 605, 51 N. W. 64.

Kansas. — Latham v. Brown, 48
Kan. 190, 29 Pac. 400; Chicago, K. &
\V. R. Co. V. Mouriquand, 45 Kan.
170, 25 Pac. 567- ^ ,

Massachusetts. — Tucker v. Massa-
chusetts C. R. Co., 118 Mass. 546.

Michigan. — Browne v. Moore, 32
Mich. 254.

Minnesota. — McLennan v. Min-
neapolis N. El. Co., 57 Minn. 317,
59 N. W. 628; Finch v. Chicago, M.
& St. P. R. Co., 46 Minn. 250, 48 N.

w. 915.

Montana. — Proctor v. Irvin, 22
Mont. 547, 57 Pac. 183.

Ne-dJ Jersey. — Pennsylvania & P.
R. Co. V. Root, 53 N. J. L. 253, 21
Atl. 285.

New York. — Seamans v. Smith,
46 Barb. 320.

Rhode Island. — Brown v. Provi-
dence & S. R. Co., 12 R. I. 1238.

15. Farmers' & Traders' Nat.
Bank v. Woodell, 38 Or. 294, 61 Pac.
837, holding that questions as to the
stage of development at which the
cultivation of sugar beets should be
commenced and the effect of a
failure to thin, weed and hoe such
plants within a certain time after
the leaves appear above the surface
of the ground, are beyond the com-
mon intelligence of ordinary men
and such as will make expert testi-
mony admissible.

16. Buffum V. Harris, 5 R. I. 243,
in which case it was held that a far-
mer who testified that he had been
engaged in draining lands for the
purpose of rendering them cultivat-
able was competent as an expert, and
might express an opinion that the

Vol. V



land in controversy required draining
to fit it for cultivation.

17. Young V. O'Neal, 57 Ala. 566.
In this case a farmer on his prelim-
inary examination touching his
qualifications as an expert, testified
that he had used " soluble Pacific
guano," a fertilizer for which the de-
fendant gave a promissory note, upon
which the action was instituted ; and
that he had experimented with it
on all kinds of garden and field
plants and crops, and had closely and
critically watched its effects and re-
sults ; and it was held that it was
error not to permit him to express
an opinion concerning the proper
methods of using it or what would
prevent it from acting beneficially.

18. Rembert v. Brown, 14 Ala. 360,
holding that it is competent to ask
a witness, who professes to know
the number of persons and animals
employed on a plantation, how much
grain per month it would requir^. to
supply the wants of the plantation.
See also Cheek v. State, 38 Ala. 227,
holding that an expert may give his
opinion as such in reference to the
amount of food which is sufficient
for laborers on a plantation.

19. Spiva V. Stapleton, 38 Ala.
171, holding that in an action by an
overseer to recover stipulated wages,
the question being how he performed
his duty as an overseer, a witness
who frequently saw the defendant's
plantation while the plaintiff was in
charge of it, and who was shown to
have been an overseer for five or six
years, may state that in his opinion
the plaintiff " manages pretty well."

20. Enright v. San Francisco &
S. J. R. Co., 33 Cal. 230, in which
case Shafter, J., said: "We are sat-
isfied that the point was not one
upon which the opinion of experts
was admissible. The facts of the
fence, bars and barway included, were



EXPERT AND OPINION EVIDENCE.



555



Yield of Land, — An expert may testify as to what crop specified
land will yield under proper cultivation f'^ likewise he may give an
estimate as to what land yielded, when no other evidence is
obtainable ;2^ and where growing crops are injured by trespassing
animals he may testify as to the extent of the injury or the
proportion of the crop that was destroyed.^^

"4. Animals. — A. In Generai.. — The nature, habits and peculi-
arities of animals and the proper care of them are not known to all
men, and hence it is that expert testimony as to animals, particu-
larly domestic animals, is admissible where such testimony is given
by witnesses who have handled, observed or studied them, and have
acquired such knowledge and experience as will enable them to



to be testified to by the witnesses ;
but the question of sufficiency, assum-
ing it to have been in the case, was
with the jury, and not with them.
The point was not one of science nor
of peculiar or educated skill. The
habits and instincts of domestic ani-
mals, and the kind of fence necessary
to restrain them, are so far matters
of general observation and experience
that a jury coming from the body of
a county may be relied on to deal
with questions like the one in hand
with all desirable accuracy, though
unaided by the opinion of persons
claimed to be experts."

21. Farmers' & Traders' Nat.
Bank v. Woodell, 38 Or. 294, 61
Pac. 837, in which case it was
held that it was proper to introduce
expert testimony upon the question,
how many tons of sugar beets could
be raised on an acre, if land were
given the greatest care and the plants
the closest attention. See also Phil-
lips V. Terry, 3 Abb. Dec. (N. Y.)
607. In this case an action was
brought to recover damages for in-
juries resulting from backing water
on a meadow, and the plaintiff, hav-
ing testified in regard to the in-
jury sustained thereby, was asked:
"Taking that hay as it stood there,
what would it yield to the acre?"
and, having been permitted to answer
the question, it was held that no
error was thus committed, the court
saying: "The farmer, acquainted
with the subject-matter of such an
inquiry as this under consideration, is
an expert, and unless the witness has
the peculiar knowledge which con-



stitutes him an expert his opinion
would be excluded."

22. Isaacs v. McLean, 106 Mich.
79, 64 N. W. 2, which was an action
of trover for a quantity of hay which
had been cut from a given acreage,
but not weighed at the time of the
conversion. It was held that a wit-
ness who had shown himself compe-
tent might be asked to state the aver-
age crop per acre for that season
upon the premises in question. See
also Townsend v. Bonwill, 5 Har.
(Del.) 474, where land was rented
for two-fifths of the corn to be raised
thereon, and the question was
whether the full amount had been de-
livered. A witness who had ex-
amined the field for that purpose was
allowed to give an estimate of the
amount of corn raised. See further
Harpending v. Shoemaker, T,y Barb.
(N. Y.) 270.

23. Seamans v. Smith, 46 Barb.
(N. Y.) 320.

Injury to Land by Cattle In

Woodbeck v. Wilders, 18 Cal. 131,
which was an action for damages for
injuries to land caused by driving
cattle upon such land, a witness was
asked the following question:
" What would have been the injury
to the land by turning in two hun-
dred head of cattle on the 12th, 13th
and 14th of April, and letting them
remain six or seven days ? " He tes-
tified that he thought it would in-
jure the wet land to the amount of
one hundred dollars to turn cattle on
it. It was held that such testimony
was admissible as it amounted to
little, if anything, more than an esti-
mate of the value of the pasturage or
of the grass.

Vol. V



556



EXPERT AND OPINION EJ'IDENCE.



enlighten the court and jury as to matters pertaining to animals
which are not within the knowledge of ordinary observers.^*

B. Age. — In addition to testifying as to the age of horses,^^ it
has been held that expert testimony is admissible as to the age of
sheep.-®

C. Propensities. — Witnesses will be permitted to testify as to
the vicious propensities of horses and other animals."

D. Breeding. — In an action involving the breeding qualities of
an animal resort may be had to expert testimony ,^^ and experts
will be allowed to testify whether or not a mare was with foal.-^



24. United States. — St. Louis I.
^I. & S. R. Co. V. Edwards, 78 Fed.

745-

Alabama. — Johnson v. State, 37
Ala. 457-

A>-ka}isas. — St. Louis, L M. & S.
R. Co. V. Philpot (Ark.), 77 S. W.
901.

California. — Polk v. Coffin, 9 Cal.

56.

Illinois. — Pearson v. Zehr, 138 111.
48, 29 N. E. 854, 2^ Am. St. Rep.

113-

Indian Territory. — Perry v. Cobb
(Ind. Ten), 76 S. W. 289.

Indiana. — Loesch v. Koehler, 144
Ind. 278, 41 N. E. 326, 43 N. E. 129,
35 L. R. A. 682; Cincinnati, H. & L
R. Co. V. Jones, iii Ind. 259, 12 N.
E. 113.

loica. — Ware Cattle Co. v. Ander-
son, 107 Iowa 231, 77 N. W. 1026;
Leek V. Chesley, 98 Iowa 593, 67 N.
W. 580; Dunham v. Rix, 86 Iowa
300^ 53 N. W. 252.

Kansas. — Missouri P. R. Co. v.
Shumaker, 46 Kan. 769, 27 Pac. 126.

Marylandi. — Baltimore & O. R.
Co. V. Thompson, 10 Md. 76.

Massachusetts. — ]Miller v. Smith,
112 Mass. 470.

Michigan. — Laird v. Snyder, 59
Mich. 404, 26 N. W. 654; Peer v.
Ryan, 54 Mich. 224, 19 N. W. 961.

Minnesota. — Fitzgerald v. Evans,
49 Minn. 541, 52 N. W. 143; Gilmore
V. Brost, 39 Minn. 190, 39 N. W. 139.

Missouri. — Branson v. Turner, 77
Mo. 489; Cantling v. Hannil)al & St.
J. R. Co., 54 Mo. 38s, 14 Am. Rep.
476.

Oklahoma. — Coyle v. Baum, 3
Okl. 695, 41 Pac. 389.

South Dakota. — Johnson v. Gil-
more, 6 S. D. 276, 60 N. W. 1070.

Texas. — Si. Louis, I. M. & S. R.
Co. V. White (Tex. Civ. App.), 76

Vol. V



S. W. 947 ; Munroe v. Schwartz
(Tex. App.), 16 S. W. 539.

Vermont. — Moore v. Haviland, 61
Vt. 58, 17 Atl. 725.

25. See article "Age/' Vol. I,
p. 738.

26. Clague v. Hodgson, 16 Minn.
329, holding that one who has had
experience as a shepherd, and owner
of sheep, and who swears that he
can tell the age of a sheep by its
teeth, until it is four years old, may
be asked his opinion of the age of
a sheep.

27. Safety of Horse Which Has

Previously Been Frightened In

Donnelly v. Fitch, 136 Mass. 558,
it was held that it was competent to
ask experts whether a horse, which
had been frightened and had run,
and had not run again for more than
a year and a half, required any more
care than it otherwise would.

As to Dangerous Character of
Bucks at Certain Seasons of the

Year In Spring Co. v. Edgar, 99

U. S. 645, which was an action for
personal injuries inflicted by a buck,
expert witnesses were called by the
plaintiff to testify that the male deer
in the fall of the year is a dangerous
animal.

28. Dunham v. Rix, 86 Iowa 300,
53 N. W. 252.

29. Boyer v. Chicago, R. I. & P.
R. Co. (Iowa), 98 N. W. 764. I"
this case farmers and stockmen,
each one of whom testified that he
was familiar with the handling and
care of marcs while with foal and
their appearance during the period of
gestation, testified that a certain mare
in their opinion was with foal. The
court said : " We think it fair to
conclude that the question whether
thc mare in question, judging from
her appearance, was or was not with



EXPERT AND OPINION EVIDENCE.



557



E. Diseases. — It is well settled that experts may testify as to
the diseases of animals.^"

F. Injuries to Animals. — An expert will be permitted to
testify as to injuries sustained by animals, provided he is properly
confined to matters which are not within the realm of ordinary
understandinsf.''^



foal, was one to be determined not
alone from such appearance — that
being all that could be described to
the jury — but by contrast thereof
with conditions arising in past ex-
perience. This the jury could not
be expected to do, and it was not er-
ror, therefore, to receive the testi-
mony of men whose experience had
given them practical familiarity with
the subject."

30. Diseases of Cattle Slater v.

Wilcox, 57 Barb. (N. Y.) 604.

Diseases of Horses. — Burnham v.
Sherwood, 56 Conn. 229, 14 Atl.
715 ; Pearson v. Zehr, 138 111. 48, 29
N. E. 854, 2>2 Am. St. Rep. 113;
House V. Fort, 4 Blackf. (Ind.) 293,
wherein an expert was allowed to
testify that the eyes of a certain
horse were diseased and that he be-
lieved that such disease had been of
long standing ; People v. Bane, 88
Mich. 453, 50 N. W. 324, in which
case one who was familiar with
horses and who had seen the horse
was permitted to testify that the
horse was afflicted with the disease
known as blind staggers ; Fitzgerald
V. Evans, 49 Minn. 541, 52 N. \V. 143,
wherein an expert was permitted to
testify that a disease known as bog
spavin is one which a horse may in-
herit. Burden v. Pratt, i Thomp. &
C. (N. Y.) 554; Nations v. Love
(Tex. Civ. App.), 26 S. W. 232;
]\Ioore V. Haviland, 61 Vt. 58, 17 Atl.
725, wherein it was held proper to al-
low a veterinary surgeon to testify
whether or not a horse had shown
any indications of " whistling."

Diseases of Sheep. — B roquet v.
Tripp, 36 Kan. 700, 14 Pac. 227 ; Dole
V. Johnson, 50 N. H. 452, in which
latter case a witness was allowed to
testify as to footrot in sheep.

Texas Fever. — Veterinary sur-
geons and professors of veterinary
medicine who have investigated the
diseases of animals, and particularly
the disease known as the Texas
fever, may testify as to whether or



not certain cattle and certain districts
of country were afflicted with such
disease. Grayson v. Linch, 163 U.
S. 468.

What Constitutes Unsoundness in
Horse. — Expert testimony is not ad-
missible to show that whistling is or
is not an unsoundness in a horse,
that being a question for the court
and jury. Moore v. Haviland, 61 Vt.
58, 17 Atl. 725. But see Spear v.
Richardson, 34 N. H. 428.

31. Polk V. Coffin, 9 Cal. 56,
holding that a stock-raiser may give
testimony as to the injuries sustained
by cattle in consequence of the fall-
ing of a wharf. Schaeffer v. Phila-
delphia & R. R. Co., 168 Pa. St. 209,
31 Atl. 1088, 47 Am. St. Rep. 884.

Permanency of Injury to Horses.
When a veterinary surgeon has
treated certain horses for disease
caused by eating castor beans, and
gives the effect of the poison on the
stomach and digestion of the horses,
and is acquainted with the general
effects of such poison on horses, he
may give his opinion as to the per-
manency of the injury. Coyle v.
Baum, 3 Okl. 695, 41 Pac. 389.

Injury to Cattle by Escape and
Wandering About. — In Schermer-
horn V. Tyler, 11 Hun (N. Y.) 549,
an action was brought to recover
damages alleged to have been occa-
sioned to fattened cattle by their es-
cape from the lot of the defendant, in
whose care they were claimed to have
been placed. A witness, who had
been in the business of buying fat
cattle, and carrying them to the city,
was asked if he knew the effect upon
fat cattle of getting out and wan-
dering about; he was further asked
how much cattle weighing 1500
pounds would shrink if they were to
get out of control in the streets for
twenty-four hours. It was held that
such evidence was inadmissible. The
court said: "If they had shrunk in
weight, or had been injured in ap-
pearance, these facts could have been

Vol. V



558



EXPERT AND OPINION EVIDENCE.



G. Frightening Horses. — Whether or not a given object is
calculated to frighten horses of ordinary gentleness is not a question
for expert testimony.-^^

H. Brands. — Experts may be permitted to give their opinions
with reference to the brands on animals.^^

I. Number and Weight. — Stock men will be permitted to esti-
mate the number of stock running in a range. ^*



proved by those who saw them. For
these were plain and conspicuous re-
sults. To prove what is the usual
effect of such an escape on such cat-
tle is to substitute conjecture for cer-
tainty. It is like asking, in an ac-
tion for assault and battery, for the
purpose of proving the plaintiff's in-
jury, what would be the usual effect
of knocking down a man of the size
of the plaintiff."

Damage per Head. _ In St. Louis,
I. ^I. & S. R. Co. V. Edwards, 78
Fed. 745, which was an action to re-
cover damages for negligently dela}'-
ing the transportation of cattle, an
expert was allowed to testify as to
the amount of damage per head that
the plaintiff had sustained, although
the defendant objected that such tes-
timony constituted " an opinion as
to values, which was wholly within
the province of the jury." Caldwell,
J., said : " The poverty of the Eng-
lish language makes it absolutely
impossible for a witness to present
to the minds of the jurors the ap-
pearance of cattle, and what that ap-
pearance denotes, as it is presented
to his practiced and experienced
eyes. The experience of the witness
and the appearance of the cattle can-
not be photographed on the minds
of the jurors. The knowledge of
the condition of these cattle, and
how that condition affected their
value, must of necessity have existed
in the mind of the witness who had
had such a large and extended ex-
perience in shipping cattle with far
greater clearness and certainly than
it could have been communicated to
the minds of the jurors by any state-
ment he might have made of what he
saw merely, however clear and lucid
such statement might have been. It
is obvious that, if witnesses were to
be permitted to state to a jury those
facts only of which they have ab-
solute knowledge, not only the range
of inquiry, but the province of

Vol. V



remedial justice, would be very ma-
terially contracted."

32. Smith v. Sherwood, 62 Mich.
159, 28 N. W. 806; Ouverson v. Graf-
ton, 5 N. D. 281, 65 N. W. 676. See
contra, Moreland v. Mitchell Co., 40
Iowa 394, in which case the court
said: "The nature, habits and pecu-
liarities of horses are not known to
all men. Persons who are in the
habit of handling and driving horses,
from this experience learn their hab-
its, nature, etc., and are therefore bet-
ter able to state the probable conduct
of a horse under a given state of
circumstances, where they have in
their experience witnessed their con-
duct under similar circumstances,
than persons having no experience
whatever with horses."

33. Askew v. People, 23 Colo. 446,
48 Pac. 524, which was a prosecution
for the larceny of cattle. The court
said: "The exact nature of the tes-
timony will be understood when it
is remembered that one of the brands
was only partially removed, the claim
of the state being that in these cir-
cumstances the opinions of experts
were competent for the purpose of
showing that the part of the brands
remaining was a part of the D. T.
brand of the D. T. Cattle Company,
the contention of plaintiff in error
being that this related to a matter
that does not require any particular
experience or peculiar skill; that the
jury was as capable of forming a cor-
rect judgment as the so-called ex-
perts."

34. Albright v. Corley, 40 Tex.
106, holding that it is competent to
prove the number of stock of a par-
ticular brand running in a range by
the opinion of stockmen accustomed
to ride in quest of other stock
through the same range, if it be
the best evidence within reach of
the party offering it, though the
witnesses may have had no interests



EXPERT AND OPINION EVIDENCE.



559



J. Herding, Driving and Shipment. — An expert may testify
as to the effect of driving and herding cattle,^"^ or upon questions
pertaining to the shipment of cattle.^°

K. Pastures and Stables. — Experts may give their opinion as
to the sufficiency of,^^ and as to other matters pertaining to, the
pasture of animals f^ and expert testimony as to stables is admitted.^^

5. Architecture, Building, etc. — In General. — Architects and
builders may testify as experts upon matters pertaining to their
business which are not within the knowledge of men generally.*"



in nor charge of the stock inquired
about.

35. Proctor v. Irvin, 22 Mont. 547,
57 Pac. 183.

36. St. Louis, I. M. & S. R. Co.
V. White (Tex. Civ. App.), 76 S. W.



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