express an opinion upon a state of facts that are either within his personal knowledge or observation, or have been presented to his mind by means of a hypothetical question embracing the facts upon which the opinion is to be based;1 and it is no objection to evidence of this character that the question propounded to the witness is the precise question the jury is to determine". On the contrary, it has been said that this would rather seem to be a good reason for the admission of the testimony. If the witness can add instruction beyond what the jury are able to obtain from the data before them it is no objection that the witness refers to the precise matter in issue.3

When it is sought to obtain the opinion of the witness by means of a hypothetical question, it is important that the question should be stated in brief and clear language. Much of the confusion and delay incident to this class of evidence result from the careless and imperfect manner in which such questions are framed. They are frequently framed more with the view of confusing the witness than of eliciting the truth or testing his qualifications, or the correctness of his conclusions. The language is usually involved and spun out to such an interminable length that the witness can seldom comprehend the real meaning of the inquiry, and ever the examiner himself is in doubt as to its real scope and object. The administration of justice would be promoted by some change in the law that would authorize and require the presiding judge to supervise the framing of the question. In that way it could be confined within reasonable and proper limits, expressed in appropriate terms and made applicable to the facts. The court, the witness and the jury would then be more likely to appreciate the true point of the inquiry and the effect of the answer, and thus much valuable time would be saved. It is not at all likely that the courts or the legislature will take any backward steps with respect to the admission of the opinions witnesses in proper cases, and hence it would be desirable to guard against some of the evils of which the 1Reynolds v. Robinson, 64 N. Y., 589; Cole v. Fall Brook Coal Co., 159 N. Y., 59.

2 Van Wycklen v. City of Brooklyn, 118 N. Y., 424.

31 Greenleaf's Ev., § 441, Ed. 1899.

courts, the profession and the public have reason to complain.

The most difficult element in this question, and that which gives the most trouble to the courts, is to determine in what cases and upon what questions or subjects opinions are admissible. Generally, it may be asserted that they are admissible upon all questions involving scientific, professional or mechanical knowledge. They are also admissible in many cases not falling within this classification, where the inquiry involves special knowledge, skill, experience or observation, and generally on questions of value. The cases in which opinions are not admissible are those where the issue involves no question of science, professional knowledge or special skill or observation, but simply matters of common knowledge relating to the ordinary affairs of life, and as to which one person is just as capable of drawing the proper conclusion as the other. In such cases it has often been said that the witness can only state the facts, leaving the conclusion to be drawn by the court or the jury. There is rarely any difficulty in cases that clearly fall within one or the other of the two groups referred to. But between the limits clearly indicated by the lines that mark the cases thus classified is a large disputed territory, the limit of which is very imperfectly defined. It is not always easy to distinguish the questions that are within the domain of common knowledge and observation from those that are not. It often occurs in practice that questions arising in the ordinary affairs of life, and which in some sense are familiar to every one, depend for their solution upon descriptive facts that the witness is unable to express in such a way as to put the jury in his place, so that the correct picture of the transaction will be presented to their minds. The passion of anger or affection for another, or the condition of intoxication, cannot always be described in words without the expression of an opinion, and in such cases it is not objectionable,1 for the reason that the witness in such cases is better able to draw the correct inference than the jury. There is a large class of questions concerning which it is held that witnesses

1

1 Blake v. The People, 73 N. Y., 586, 1 Greenleaf's Ev., supra.

may express opinions, although in a large sense they would seem to be matters of common knowledge and observation, Thus it was held that a witness might give his opinion whether threshing machines were constructed in a good and workmanlike manner;1 whether a cobble stone wall was properly built; whether it was customary to have guards upon draw bridges; whether certain cabinet work was well done and a good job;4 how much a given field would yield to the acre;5 whether a scow was seaworthy; whether a test applied to fire hose was a fair one; whether it would be safe or prudent for a tug boat to tug three boats abreast in a high wind upon a bay or arm of the sea;8 whether tunneling near other property would cause the earth to settle and slide; whether certain soils would resist the percolation of water;10 whether the walls of a building were sufficient to sustain it;11 whether the use of machinery on the third floor of a building would have the effect of weakening the walls;1o whether a staging erected in a specified way can be safely trusted to carry a particular load. 13

These decisions illustrate a large class of cases that are very near to the boundary line. The cases in which opinions are inadmissible are those where the inquiry is a matter of common knowledge or observation, and are well illustrated by the discussion in Ferguson v. Hubbell (97 N. Y., 507). In that case witnesses were permitted to give opinions whether it was a proper time in the year to set fire to a fallow from which the fire spread to the plaintiff's land. That was clearly a question for the jury when all

the facts and circumstances had been disclosed, and it is seldom that any controversy will arise in so plain a case. The trend of judicial decisions in recent times is in the direction of more liberality in admitting opinion evidence. When the question is of such a character that a court or jury may be aided by the learning and skill of experts, or by superior knowledge and experience concerning the matter in controversy, even though in a general sense the inquiry may not relate to a subject within the domain of science, the opinion of a qualified witness is generally admissible. It frequently happens in practice that the facts which surround the question are so complicated or indistinct that the jury may not be able to grasp them or to draw the proper inference. In such cases a competent expert will be better able to comprehend the real situation and thus his opinion is helpful in the solution of the question.

The consensus of judicial opinion is decidedly unfavorable with respect to the force or value of this species of evidence, and undoubtedly it is open in this respect to all the criticism that it has received from the courts. In many cases the witness, from causes that have been mentioned, becomes an interested partisan on the side of the case to which he owes his employment and is generally confronted with one equally interested on the other side. In the conflict of opinions that generally follows, the jury frequently find their way out of the difficulty by disregarding all evidence of this character. It is discredited from the beginning largely in consequence of the means by which it has been obtained. It remains true, however, that if the abuses incident to the presentation of such evidence could be removed, the opinion of a capable and disinterested expert would frequently be of great value in the investigation of questions of fact. It would be much easier and wiser to root out these abuses than to dispense with this kind of evidence altogether. DENIS O'BRIEN.

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ADMIRALTY COURTS-EFFECT OF STATE DECISIONS-LIABILITY OF MUNICIPAL COrporations for the Negligence of their Fire-tugs. The Supreme Court of the United States by a majority of one has decided that a municipal corporation is liable in a court of admiralty in a suit in personam for the negligence of one of its fire-tugs whether it is liable in the courts of the State where the tort occurred or not-Workman v. The Mayor, etc., of New York, 21 Supreme Court Reporter, 212. The majority opinion is based on the ground that a United States court of admiralty, administering, as it does, a system of law peculiarly its own, and having by the constitution an exclusive jurisdiction (Art. 3, § 2), is never bound to apply local law, as the United Courts of Common Law and Equity, which enforce the same system of law as the State courts, often have to do. For this reason the Court holds that an admiralty court is not bound by Detroit v. Osborne, 135 U. S., 492, which held the local law of municipal corporations applicable in United States courts of common law. This view of the freedom of admiralty courts is fully borne out by the cases-Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S., 397 (1889); Butler v. Boston & S. S. S. Co., 130 U. S., 527 (1889); The Max Morris, 137 U. S., I (1890), The J. E. Rumbell, 148 U. S., I (1893). Mr. Justice White, who writes the majority opinion, then goes on to show that the logic of the maritime law cannot conceive of a legal person, capable of being sued, whose liability for a tort in a particular instance depends on the nature of the act which produces the injury. On page 219 he says: "It results that in the maritime law, the public nature of the service upon which a vessel is engaged at the time of the commission of a maritime tort affords no immunity