Stowe v. Bishop

The opinion of the court was delivered by

It was competent for plaintiff to show defendant’s statements, made soon after the injury, to the effect that he was careless in not hitching the horse, and expected to pay for it, etc.

In the circumstances of the case, negligence was a question of fact and not of law, and defendant’s statements were evidence against him on that point; but as they were non-contractural and non-dispositive admissions, they were not conclusive proof of that which he stated, but were open to neutralization by showing that on reflection and consideration he had come to think otherwise. Dennison v. Miner, 2 Atl. Reporter, 561—Sup. Ct. of Pa. — is exactly in point.

Mrs. Stowe was a competent witness to defendant’s declarations. It does not appear that they were made to or even in the presence of her deceased husband; but if it did, she was still competent, for she did not testify to admissions nor conversations of her husband made to or with herself or third persons, nor did she disclose matters of confidence between her and her husband, nor matters affecting his character. Smith v. Potter, 27 Vt. 304; Peck, J., in Carpenter v. Moore, 43 Vt. 394.

The question proposed to Faulkner and others as to whether it was the act of a careful and prudent man to leave the horse as defendant did, was properly excluded as relating to a matter not the subject of expert nor opinion evidence. It was not a question of science, art, nor skill; *501nor were the attendant facts and circumstances of such a character as to render them incapable of being presented by the observer with their proper force to the referee so as to enable him to draw a correct and an intelligent conclusion therefrom without the aid of the opinion of the witnesses; but the subject was one within the common knowledge and experience of all men moving in the ordinary walks of every-day life, in which case there is no room for expert testimony, and it ought not to he allowed — it is for the trier to draw the inference. New England Glass Co. v. Lovell, 7 Cush. 319; Milwaukee & St. Paul R. R. Co. v. Kellogg, 94 U. S. 469. Thus, in an action for negligently setting fires that were communicated to plaintiff’s land, the opinion of witnesses who saw the fires was held inadmissible as to the suitableness of the day for setting fires. Fraser v. Tupper, 29 Vt. 409. So in case for overloading and overtasking plaintiff’s horse, witnesses familiar with the facts were not allowed to give their opinion as to whether the horse was unreasonably loaded, and as to what would have been a reasonable load. Oakes v. Weston, 45 Vt. 430, Nor can an expert be asked whether the time a railroad train. stopped was sufficient for a passenger to get off; Keller v. Railroad Co. 2 Abb. (N. Y.) App. Dec. 480; nor whether it was prudent to blow a whistle at a particular time; Hill v. Railroad Co. 55 Me. 438; nor whether plaintiff could have been injured in oiling a certain part of the machinery of a steam-engine if he had not been careless; Buxton v. Somerset Potters’ Works, 121 Mass. 446; nor whether placing wet staves on the outside of an arch with fire in it was a safe and prudent way to dry them; White v. Ballou, 8 Allen, 408; nor can a witness familiar with a bridge be asked whether it was safe; Crane v. Northfield, 33 Vt. 124.

Judgment affirmed.