Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 68 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 68 of 73)
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be tardy, but wholly inadequate. Intercourse between settled
portions of the county and the county seat would be almost
wholly interrupted, the citizens put to great inconvenience,
and injuries inflicted which though in particular cases might
be trifling, yet in the aggregate would be too grievous to be
borne. It would be a monstrous public nuisance, to prevent
which full power is lodged in a court of chancery by calling
into exercise its restraining power. With that powerful
arm the whole wrong can be at once grasped and the injury
prevented."

3; The only remaining question is, whether the court erred
in holding that the road in question was a public highway by
dedication. The finding places this part of the case beyond
the realm of doubt and renders discussion unnecessary. It
shows the existence of every essential element of a complete
dedication by the owner as and for a public highway, and a
corresponding acceptance on the part of the public by an
unquestioned and uninterrupted use for the period of thirty-
two years. It is also found that the way thus used is re-
quired by common convenience and necessity.

There was no error in the judgment complained o£

Id this opinion the other judges concurred.



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656 CIRCLEVILLE V. NEUDING,



CiRCLEVILLE

Neuding.

(41 Ohio St. 465.)

Where a city contracted for the construction of a cistern eighteen feet
wide and twenty feet deep in a street, and before the cistern was com-
pleted a horse fell into it and was killed, for want of sufficient protection
around and over the excavation to guard animals in the proper use of the
street from danger,

Held, That the city was liable for the loss of the horse, although it did
not reserve or exercise any control or direction over the manner of doing
the work, except to see that it was done according to specifications which
were a part of the contract.

Error to District Court of Pickaway County.

The city of Circleville on the 20th day of December, 1881,
made a contract with one Peter Bamdt to construct a public
cistern for the city in one of its streets, according to plans
and specifications adopted by the Q\X.y council. Bamdt
agreed to furnish all materials and do all the labor in the
construction of the cistern for a given price agreed upon by
him and the city council. The cistern was eighteen feet in
diameter and twenty feet deep. After the excavation for the
cistern had been made and the wall built up about ten feet,
and while the work was temporarily suspended, a mare, the
property of the defendant in error, who lived within a few
rods of the cistern, being at large accidentally on the street,
fell into the cistern and was so injured that she died soon
afterwards. The cistern was left by the workmen without a
fence around it, but it was covered partly with three-inch
plank and partly with one-inch pine boards. The covering
of the excavation was not much raised above the level of the
street, and at the time of the accident there was about eight
inches of snow upon this covering. A trial in the common
pleas resulted in a verdict and judgment for the plaintiff.
This judgment was affirmed in the district court, and the de-
fendant below files his petition in error to reverse this judg-
ment.



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CIRCLEVILLE V NEUDING. 657

Adolpk Goldfrederick and /. N. Abernethy for plaintiff in
error.

Samuel W. Courtright and Festus Walters for defendant in
error.

McCauley, J. — It is contended on behalf of the city that it
is not liable for the loss of the horse, because the cistern was
in process of construction by an independent contractor when
the injury occurred. The relation between the city and
Barndt was clearly that of employer and independent con-
tractor, and the rule is generally that for injuries ^'^^J^SI:
occurring in the progfess of work carried on by
parties in that relation the contractor alone is lia- work!'
ble. But this liability is limited to those injuries which are
collateral to the work to be performed, and which arise from
the negligence or wrongful act of the contractor or his agents
or servants. Where, however, the work to be performed is
necessarily dangerous, or the obligation rests upon the em-
ployer to keep the subject of the work in a safe condition,
the rule has no application. This distinction* has been taken
in this State in a number of cases. Carman v. Railroad Co.,
4 Ohio St. 399 ; Tiffin v. McCormack, 34 Id. 638 ; Hughes v.
Railway Co., 39 Id. 461 ; arid elsewhere, in McCafferty v. Rail-
road Co., 61 N. Y. 178; Prentiss v. Boston, 112 Mass. 43;
Baltimore 2^. O'Donnell, 58 Md. no; Logansport z/. Dick, 70
Ind. 65 ; Crawfordsville v. Smith, 79 Id. 308 ; Robbins v. Chi-
cago, 4 Wall. 657.

In this case, the cistern contracted for was to be built in a
street, and to be eighteen feet wide and twenty feet deep.
Such an excavj^tion in a street, unless protected to guard per-
sons and animals using the street from falling into it, was nec-
essarily dangerous. The city was under the statu- cwterm w
tory obligation at the time of the accident to keep
its streets open, in repair, and free from nuisance,
and it could not cast this duty upon a contractor, so as to re-
lieve itself from liability to one who should receive an injury.
It is primarily liable for an injury resulting from such danger-
ous place in a street. If it has required the contractor to as-
sume the risk of such damage, it may have a remedy against
him. But the public in the use of the streets may rely upon
the legal obligation of the city to keep them free from danger-

9 Cor. Gas. — 4a



ITT or CITY FOB

nrjURTBT.



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658 WHITCHER V. CITY OF SOMERVILLE.

ous places ; or, if such places become necessary to be made m
the course of an improvement or work necessary or proper
for the city to do, that it shall so guard them that no injury
shall result in the ordinary use of the street.
Judgment affirmed.



Whitcher
City of Somerville.

(138 Massachusetts, 454,)



If a portion of a highway in a city is lowered for the purpose of having
a railroad pass over it by means of a bridge, such portion is not included
in the " approaches" to the bridge, within the meaning of the Pub. Sts. c
112, § 128, so as to render the railroad corporation liable for an injury
caused by a defect therein, and to exonerate the city from liability.

Tort for injuries to the plaintiff's horse, carriage, and
harness, caused by a defect in Washington Street, in the de-
fendant city.

S. C. Darling for defendant
/. Bennett for plaintiff.

C. Allen, J. — A bridge under a highway, within the
meaning of the Pub. Sts. c. 112, § 128, is a bridge 3,^^^^^^
for travellers to use as a part of the highway, ™»hwat.
crossing the raib-oad over the level thereof. Cambridge v,
Charlestown Branch Railroad, 7 Met. 70, 72; Sawyer v.
Northfield, 7 Cush. 490; Titcomb v. Fitchburg Railroad, 12
Allen, 254; White v, Quincy, 97 Mass. 430; Rev. Sts. c. 39,
§ 72; Gen. Sts. c. 63, § 61 ; St. 1874, c. 372, § 95.

In the present case, the railroad crossed the highway, over
the level thereof, by means of the bridge, and the highway
was lowered for the purpose of having the rail- SlT^SS*^
road pass over it. The only question is, whether l^SSSSf" ^
that portion of the highway which was so lowered is in-
cluded in the approaches to the bridge, within the meaning
of the Pub. Sts. c. 112, § 128, so that the railroad company is
liable for an accident happening thereon, and the city ex-
onerated.



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CITY OF BLOOMINGTON V, SHROCK. 659

The approaches to a bridge are the ways at the ends of it,
which are a part of the bridge itself, or are appendages to it.
This was quite plain under the St. of 1846, c. 271, § i. By
the common law, the duty to keep a bridge in repair carried
with it the duty to keep in repair, as a part of the bridge, the
highway at each end of it for a space of three hundred feet.
The King v. West Riding of York, 7 East, 588; s. c, in
House of Lords, 5 Taunt. 284. This limit of space has not
been adopted in this Commonwealth, but the highways at
the ends of a bridge have been recognized as, and called,
the approaches to it, in several decisions. Commonwealth
V. Deerfield, 6 Allen, 449, 455; Titcomb z^. Fitchburg Rail-
road, 12 Allen, 259; Rouse v. Somerville, 130 Mass. 361.
This was the meaning in the St. of 1846, c. 271, § i, and, when
taken with the context, is the meaning in the Pub. Sts. c. 112,
§ 128. As the bridge in the present case was not a part of
the highway, but was a part of the railroad track, and crossed
the highway over the level thereof, the approaches to it did
not include any part of the highway, and the city was not re-
lieved of its liability to keep in repair that portion of the
highway where the accident happened.

Exceptions overruled.



The City of Bloomington
Shrock.

{iio Illtnois, 219.)

The weight of current authority is decidedly against the admission of
scientific books in evidence before a jury, and against allowing them to
be read from to contradict an expert, generally. When, however, an expert
assumes to base his opinion upon the work of a particular author, that
work may be read in evidence to contradict him.

Where a witness was examined as an expert, and gave evidence tending
to prove that a party had been guilty of negligence after a fall, in omitting
proper care to avoid an abortion, but did not quote from or make any refer-
ence to any medical^ books on the subject, the court allowed counsel, on
cross-examination, to ask him if he was acquainted with Playfair and Bed-
ford (treatises on midwifery), and upon his responding in the affirmative,
and that they were standard authorities on such questions, the court



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66o CITY OF BLOOMINGTON V. SHROCK.

allowed counsel to read at length from each of those authors, consecutively,
and then inquire of the witness whether he agreed with the authors as to
the parts so read. Held, that it was error to allow the reading from the
books and the questions to be propounded to the witness as to his agree-
ing with the authors.

Since medical or other scientific books are not admissible as original
evidence, it follows they are not admissible on cross-examination, when
their introduction is not for the direct contradiction of something asserted
by the witness, but simply to prove a different theory.

Appeal from the Appellate Court for the Third District.
Heard in that court on appeal from the Circuit Court of
McLean county ; the Hon Owen T. Reeves, Judge, presiding.

Mr. John T. Lillard for appellant.

Messrs. Fifer & Phillips for appellee.

SCHOLFIELD, J. — This was an action on the case for negli-
gence by appellee against appellant. Appellee, a married
woman, was violently thrown down while walking along a
sidewaUc adjacent to one of appellant's streets, by reason of a
facw. defect in the sidewalk, and thereby received in-

juries which, she claimed, resulted in causing her to have an
abortion. It was contended by appellant, upon the trial, that
she was guilty of such contributory negligence as to bar her
right to recover, in omitting proper care and caution to avoid
the abortion, — and this was the most important question upon
the trial, although there were other questions of minor con-
sideration contested.

Dr. Luce was called and examined as a witness on behalf
of appellant, as an expert, and gave evidence tending to prove
that appellee was guilty of negligence in the respect con-
tended by appellant. He quoted from and made reference
to no book; but upon his cross-examination, counsel for
appellee inquired of him whether he was acquainted with
Playfair and Bedford (treatises on midwifery), and upon
his responding in the affirmative, and that they were standard
authorities on questions of this character, counsel proceeded
to read at length from each of these authors, consecutively,
and then inquired of the witness whether he agreed with the
authors as to the parts so read. This was objected to by the
counsel for appellant, but allowed by the court, and the wit-
ness was required to make answer.



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CITY OF BLOOMINGTON V. SHROCK. 66l

The weight of current authority is decidedly against the
admission of scientific books in evidence before a ADmssioif of
jury, although in some States they are admissible. !?S^5t^""
I Greenieaf on Evidence, sec. 440, and note ; Wharton on
Evidence, sec. 665 ; Rogers on Expert Testimony, sees. 168,
169 et seq.y and cases cited in notes. And the weight of cur-
rent authority is also against allowing such treatises to be
read from, to contradict an expert, generally. See authori-
ties w/ra, and Commonwealth v. Sturtevant, 117 Mass. 122;
Davis V. The State, 38 Md. 15 ; The State v. O'Brien, 7 R. I.
336. Where, however, an expert assumes to base his opinion
upon the work of a particular author, that work may be read
in evidence to contradict him. This was, in effect, our ruling
in Connecticut Mutual Life Ins. Co. v, Ellis, Admr., 89 111.
516; and it was expressly so ruled in Pinney v. Cahill, 48
Mich. 584 ; City of Ripon v. Bristol, 30 Wis. 614, and Huffman
V. Click, 77 N. C. 55. See, also, Marshall v. Brown, 50 Mich.
148; Rogers on Expert Testimony, sec. 181.

But counsel for appellee insist the ruling of the court below
is in exact conformity with the ruling of this court in Con-
necticut Mutual Life Ins. Co. v. Ellis, Admr., supra. This is
a misapprehension. In that case the witness stated " that he
had read text-books that he might be able to state why he
diagnosed the case as delirium tremens;'' and it was held
" not unfair to the witness to call his attention to the defini-
tions given in the books of that particular disease, and ask-
ing him whether he concurred in the definitions/* And it
was said : " That is, in no just sense, reading books to the
jury as evidence, or for .the purpose of contradicting the wit-
ness." The source of his professed knowledge was given,
and it was allowed to show that he was mistaken, by resort-
ing to that source. In the present case, it has been seen, the
course pursued was entirely different. The witness based no
opinion which he gave upon the authority of books, and
they were only brought in to impair his evidence on cross-
examination.

Where a witness says a thing or a theory is so because a
book says so, and the book, on being produced, is discovered
to say directly to the contrary, there is a direct contradiction
which anybody can understand. But where a witness simply
gives his opinion as to the proper treatment of a given disease



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662 CITY OF BLOOMINGTON V, SHROCK.

or injury, and a book is produced recommending a different
treatment, at most the repugnance is not of fact, but of
theory ; and any number of additional books expressing dif-
ferent theories would obviously be quite as competent as the
first. But since the books are not admissible as original evi-
dence in such cases, it must follow that they are not admis-
sible on cross-examination, where their introduction is not
for the direct contradiction of something asserted by the
witness, but simply to prove a contrary theory.

We think the court erred in admitting this evidence, and
for that error the judgment is reversed and the cause re-
manded.

Judgment reversed.

Extracts from Professional or Scientific Works are not Ad-
missible AS Opinion Evidence, or in Support of Opinion Evidence.
— It is settled in most jurisdictions that where the issue involves or depends
upon facts of a scientific or professional character, extracts from scientific
or professional standard works are not admissible in evidence, (a) either
independently — Collier v. Simpson, 5 Car. & P. 73 ; Commonwealth v.
Wilson, I Gray (Mass.), 337— or'(^) in support of or in connection with
expert testimony — Commonwealth v, Sturtevant, 117 Mass. 122; Davis v.
State, 38 Md. 15, 36; Boyle v. State, 57 Wis. 472. For a full discussion of
of this subject see Rogers on Expert Testimony, §§ 168 et seg,, where it is
shown that professional or scientific books are held not admissible as evi-
dence in England. Indiana, Maine, Maryland, Massachusetts, Michigan,
North Carolina, Rhode Island, and Wisconsin ; that there are dicta to the
same effect in California and New Hampshire ; and that Alabama and
Iowa are the only jurisdictions where such books are held admissible.

Medical or other Professional Works may be read from on
Cross-examination for the Purpose of breaking down an Ex-
pert Witness. — But although a professional book cannot be received in
evidence, the better reasoning and authority both seem to indicate that
such books may be read froip in the course of the cross-examination of
an expert witness for the purpose of breaking down his testimony. Thus
in Pinney v, Cahill, 48 Mich. 584, a veterinary surgeon had on direct ex-
amination testified that a horse had died from the effects of overfeeding
while hot, which would produce colic. On cross-examination the witness
said that colic was caused by overfeeding when the animal was too warm,
that all works of good authority spoke of it, and that Dr. Dodd's " Modem
Horse Doctor" was a work of that kind. The defendant then offered to
show from this work of Dr. Dodd, where the author treats of colic, the
passage following : " In nine cases out of ten, colic is the result of impaired
digestive organs." This evidence was admitted over objection and ex-
ception, and was held to have been properly admissible for the purpose of
disparaging the opinion of the witness. So in Huffman v. Click, 77 N. C



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CITY OF BLOOMINGTON V. SHROCK. 663

55, 58, the court say : " The medical expert himself may cite standard au-
thorities in his profession as sustaining his views, and then they may be
put in evidence by the opposing side to discredit him, but he cannot read
them either as evidence or argument, nor can the counsel offering them."
Again in City of Ripon v. Bittel, 30 Wis. 614, the court say: "The
record does not inform us what the purpose or object of the offer of the
treatise was. Counsel suggest that it may have been to expose or discredit
the medical witnesses examined as experts, who, founding their opinions
upon the same treatise, recQgnized as- standard authority, had testified
that the books laid down such and such particular conclusions, when in
truth and fact the books did not do so, and the witnesses were mis-
taken. Counsel asks if, under such circumstances, the books would not
be admissible as in the nature of impeaching evidence, or to show that the
experts were in error. We cannot say that the admission would be im-
proper, and so must overrule the objection."

On the other hand, it was held in Davis v. State, 38 Md. 1 5, that " medi-
cal books are not admissible in evidence, either for the purpose of sus-
taining or contradicting the opinion of a witness." And the same view
seems to have been taken in State v. O'Brien, 7 R. I. 336. 338.

On principle it would seem that extracts from professional or scientific
works are clearly admissible to discredit an expert witness, after a proper
foundation has been laid for their admission. The grounds on which an
expert witness bases his opinion are always relevant and material to the
issue. Steph. Dig. Evid.. art. 54; Dickinson v. Fitchburg, 13 Gray (Mass.)
546, 557. They may be inquired into on the direct examination or on the
cross-examination. Rogers Expert Testimony, § 32. If the expert wit-
ness, in answer to an interrogatory, states that he bases his opinion on a
professional or scientific work, this answer is material to the issue, and if
the work cited does not support the opinion given, this fact may be shown
to shake the credit of the witness by destroying one of the grounds on
which his opinion was based. The objection to admitting such evidence
in lieu of or in support of opinion evidence — namely, that it is hearsay and
unsworn — has no application here, since the extracts are read, not in sup-
port of the opinions they set forth, but merely to show that they furnish
no foundation for the opinion given by the witness.

What Foundation must be laid before Expert Witness may
BE Discredited by Extracts from Professional or Scientific
Works. — It seems clear that an expert witness cannot be discredited in
the manner before indicated, until he has been asked the source or founda-
tion of his opinion, and has stated it to be based wholly or in part on pro-
fessional or scientific books. In the principal case the witness was not
asked the foundation of his opinion, but counsel proceeded to confront
him with extracts from standard works, and asked him if he agreed with
the authors as to the parts read. Non constat that the witness based
his opinion on any books, and hence clearly the evidence offered had no
tendency to shake the grounds of that opinion.

It would seem that if witness has based his opinion wholly or in part on
" all the works of good authority" on a given subject, he may be dis-



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664 HAYES V. CITY OF CAMBRIDGE.

credited by reading from any work recognized by witness as a woilc of
good authority. Pinney v, Cahill, supra.



Hayes

V.

City of Cambridge.

(138 Massachusetts, 461.)



In an action against a city for personal injuries occasioned by stepping
into a hole in a street crossing, caused by an accumulation of snow and
ice, the defendant introduced evidence tending to show that, on certain
days previously to the accident, there had been two very heavy snow-
storms ; and also introduced evidence tending to show the length of the
streets it had to clear, and their condition after the storms, the amount of
labor it had to do on its streets, the amount it did, and the expenses in-
curred, and the time and labor involved. The plaintiff then offered in
evidence an ordinance of the city providing that the tenant, occupant, or
abutting owner of land should, within twenty- four hours after a fall of
snow, clear the sidewalks in front of his premises, under a certain penalty.
This evidence was excluded. Held, that the plaintiff had no ground of
exception.

W. E. Russell for plaintiff.
/. W. Hammond for defendant

Morton, C. J. — The plaintiff was injured, on February 7,
1882, by stepping into a hole in a street crossing, caused by an
accumulation of snow and ice. At the second trial, after the
pacm. decision reported in 136 Mass. 402, the defendant

introduced evidence tending to show that on January 31, and
on February 4 and 5, there had been two very heavy snow-
storms ; and also evidence tending to show the length of the
streets it had to clear, and their condition after the storms,
the amount of labor it had to do on its streets, the amount it
did, and the expenses incurred and the time and labor in-
volved, with a view of showing that the defect which caused
the injury could not have been remedied by reasonable care
and diligence on its part. Pub. Sts. c. 52, § 18. Rooney v.
Randolph, 128 Mass. 580 ; Hayes v. Cambridge, 136 Mass. 402.

The plaintiff offered in evidence an ordinance of the city
which provides that the tenant, occupant, or abutting owner of



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SPRAGUE V. BRISTOL. 665

land shall, within twenty-four hours after a fall of snow, clear the
sidewalks in front of his premises, under a penalty of not less
than two nor more than twenty dollars. The court excluded
the evidence, and the plaintiff excepted.

The duty of clearing the streets and making them safe and
convenient for travellers is primarily upon the city. ^^^^ ^^^^ ^
The ordinance, if valid, does not excuse it from this ^^^^^ «»«».
duty, nor exempt it from liability for defects. If abutters, or
others, after the snow-storm of February 5, did in fact re-
move the snow from the sidewalks, and thus relieve the city
of a part of the work which it was its duty to perform, this
would be competent evidence. But the plaintiff did not offer
to prove this. Mere proof of the existence of the ordinance
would not aid the jury, but would tend to mislead them to
decide the case upon speculation and conjecture rather upon
facts proved.

Proof of the ordinance is not proof that work was done
by the abutters under it ; and, as the offer of the ordinance
was not accompanied by any offer to prove that any side-
walks were in fact cleared under it» we think the Superior
Court rightly rejected it.



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 68 of 73)