Schermerhorn v. Tyler

If the witness had seen the cattle, he, as a man acquainted with cattle, might have testified as to their value. Yalue of marketable property is so far a matter of fact, that it may be proved by *551witnesses. The witness, however, was not asked as to the actual injury to these cattle, but as to the injury which would ordinarily be occasioned to such cattle, by a similar exposure. To admit this, was to extend the admission of evidence by experts too far. There could be no difficulty, in this case, in showing the actual injury to the cattle, which followed their escape and their wandering about. If they had shrunk in weight, or had been injured in appearance, these facts could have been proved by those who saw them. For these were plain and conspicuous results. To prove what is the usual effect of such an escape on such cattle, is to substitute conjecture for certainty. It is like asking, in an action for assault and battery, for the purpose of proving the plaintiffs’ injury, what would be the usual effect of knocking down a man of the size of the plaintiff. “ The subject of the proposed injury, was a matter of common observation, on which the lay, or uneducated mind is capable of forming a judgment.” (Milwaukee and St. P. R. W. Co. v. Kellogg, U. S. Sup. Ct., 15 Alb. Law J., 408.)

Again, the witness having heard the owner of the cattle describe their appearance, was asked to estimate the loss on such cattle as he had described. These questions, or some of them, seem to have been intended to obtain the judgment of the witness as to the damage sustained by these cattle, assuming the plaintiff’s description of them to be true. And the plaintiff claims that this was admissible under McCullum v. Seward (62 N. Y., 316). In that case, a plaintiff, having described the services that he had performed, was permitted to ask a witness what such services as he described were worth. This was only inquiry as to marketable value. But in the present case the witness, who had never seen the cattle but had heard the plaintiff describe them in his testimony, was asked to estimate the damages they had sustained. That was the duty of the jury.

"Without looking at the other questions, I think there must, for these reasons, be a new trial, costs to abide the event.

New trial granted, costs to abide event.