Shufelt agt. Power and others

may testify. This right, so far as Gantley is concerned, might be lost to the defendants, if they were not permitted to take his examination upon commission.

It has always been regarded as very much a matter of course, to allow a commission to issue, when a party shows that he has a material witness not within the reach of subpoena, unless it is made to appear that the application is not made in good faith. I think the same rule should still prevail, even where the witness to be examined is a party to the action, unless it is made to appear that the examination cannot be received as evidence upon the trial. Where a party swears, upon the advice of counsel, that another party, who is absent from the State, is a material witness, he should be regarded as having made a prima facie case for a commission. This motion should therefore be granted, with costs to the prevailing party in the action.

The Rochester and Syracuse Railroad Company agt. Budlong.

SUPREME COURT..

THE ROCHESTER AND SYRACUSE RAILROAD COMPANY, Respondents, agt. MILTON BUDLONG, Appellants.

What are the principles upon which the opinions of witnesses are received as evidence, upon the trial of issues of fact?

The general rule, that testimony should consist of facts, and not opinions, is conceded by all. The difficulty lies in defining the exceptions to this rule, and the foundations upon which they rest.

The most prominent class of exceptions, is that of cases involving questions of science or skill, or relating to some art or trade, in which experts, or persons interested in the particular science or art, and they alone, are permitted to give opinions. What are the particular arts or trades which fall within this exception?

Held, that upon all questions, except those, the knowledge of which is presumed to be alike common to all men, whatever may have been their education or employment, the opinion of persons skilled in the particular subject to which the question relates, is admissible.

Every business or employment, which has a particular class devoted to its pursuit, is an art or trade within the meaning of the rule. Another principle, entirely distinct from that upon which experts are admitted, which leads to the reception of opinions in evidence in a numerous class of cases, is, the impossibility of adequately describing, in language, matters and scenes which have been previously presented to the personal observation of the witness. Among this class, may be included questions relating to handwriting-sometimes the value of articles, such as household furniture, and domestic animals-whether a deceased person was physically capable at a certain time, of subscribing his name to a will-the age of a person-attachment existing between parties, in an action for breach of promise of marriage, &c.

But while opinions are uniformly received upon a question of value, can they ever be received upon a question of damages

Held, that in many cases the two questions are identical—that is, the amount of damages depends entirely upon a question of value. And there is no such inherent distinction between questions of value and questions of damages, if from the latter is excluded all idea of any legal rule or measure of damages, as will bring one within and the other without the province of opinions from witnesses.

If the rule, that whenever opinions are resorted to, the facts upon which the witness bases his opinion should in all cases be given, were strictly observed, there would probably be less hostility, both at the bar and on the bench, to their admission.

In this case, the questions put to the witness, preceded by a full statement in VOL. X. 19

The Rochester and Syracuse Railroad Company agt. Budlong

regard to the competency of the witness to give an opinion, and of all the facts upon which that opinion was founded, were as follows:

1. Will you state what, in your opinion, will be the injury to the residue of Budlong's farm, occasioned by the construction of the proposed railroad through it?

2. State, if you can, what would be the diminution in value of the two fielde north and south of the proposed railroad, by the construction thereof? Held, that they were proper. One related to the whole, and the other to a portion of the farm; otherwise they were identical. There was no difference between an inquiry as to the damage or injury which would be done to the land by the construction of the road, and as to its diminution in value in consequence of such construction.

Monroe General Term, December, 1854.

WELLES, JOHNSON and SELDEN, Justices.

THIS is an appeal from the appraisal of certain lands belonging to the appellant, by commissioners appointed by this court pursuant to § 15 of the general railroad act passed April 2, 1850.

Upon the hearing before the commissioners, a witness called by the appellant, was asked, what would be the injury to the appellant's farm arising from the construction of the respondent's road; and what would be its diminution in value from the same cause? These questions were objected to by the respondents, and excluded by the commissioners.

E. DARWIN SMITH, for appellant.

ORLANDO HASTINGS, for respondents.

By the court-SELDEN, Justice. Were the questions proposed properly overruled?

This inquiry calls for an examination of the principles upon which the opinions of witnesses are received as evidence upon the trial of issues of fact. I shall not attempt any elaborate analysis of the doctrines advanced in the numerous and conflicting decisions upon this subject, but shall content myself with noticing a few of the leading ideas connected with it.

The general rule, that testimony should consist of facts, and not opinions, is conceded by all. The difficulty lies in defining the exceptions to this rule, and the foundations upon which they rest.

The Rochester and Syracuse Railroad Company agt. Budlong.

The most prominent class of exceptions is that of cases involving questions of science or skill, or relating to some art or trade, in which experts, or persons instructed in the particular science or art, and they alone, are permitted to give opinions. The reasons for this class of exceptions are obvious. But, what are the rules by means of which we are to ascertain its extent? What are the particular arts or trades which fall within the exception? There must, of necessity, be some general rule, by which this is to be determined. To confine the exceptions to a few only of the more prominent professions or trades, would do violence to the principles which led to its adoption. The exception should, of course, be co-extensive with the reasons upon which it is founded.

In a community like ours, where almost every man has his own peculiar pursuit, to which he devotes his time and his thoughts, it is apparent, that in a large portion of the cases which arise, there must be a class of individuals, far more capable of forming an accurate opinion upon the facts of the case, than persons taken indiscriminately from the common walks of life. To deny to a court or jury, under such circumstances, the aid to be derived from the opinions of competent witnesses, is to deprive them of the light by which alone they can be guided to a just conclusion.

It follows, that upon all questions, except those, the knowledge of which is presumed to be alike common to all men, whatever may have been their education or employment, the opinion of persons skilled in the particular subject to which the question relates, is admissible.

The boundaries of the exception in question, are the same as those which limit the division of occupations. Every business or employment, which has a particular class devoted to its pursuit, is an art or trade, within the meaning of the rule.

But there is another principle, entirely distinct from that upon which experts are admitted, which leads to the reception of opinions in evidence. It is this. It is frequently impossible, in the nature of things, to describe, in language, an absent scene or object, so as to enable the hearer to form the same

The Rochester and Syracuse Railroad Company agt. Budlong.

clear conception and judgment in regard to it, as if it were present to his senses.

are numerous.

The cases in which opinions are received upon this ground, Questions relating to handwriting, may be included in this class. Were it possible for the witness to give a perfect description of the image impressed upon his memory, there would be no necessity for an opinion. Questions of value, too, belong sometimes to the same class. If they relate to the value of wheat, corn, flour, or other article of merchandize, which is referable to a common standard; it is sufficient if the witness be a dealer in this article, or otherwise instructed as to its value-that is, an expert. But, if the article belong to a class, the individuals of which admit of a great diversity, as for instance, that of domestic animals, or household furniture; no one can, in general, testify as to its value, except one who has seen the particular thing.

There are many other cases, in which the opinions of witnesses will be received, on the ground of the superior advantages which a personal observation of the facts affords. For instance, suppose it to become a material question, whether a deceased person was physically capable, at a certain time, of subscribing his name to a will. A witness who had been constantly with him, immediately before and after the precise time, with opportunity for closely observing all his actions, might, I think, give his opinion upon the question, and that from the necessity of the case. It would obviously be impossible, by any mere description of the appearance and conduct of the person, to convey to the jury any precise idea as to the degree of his weakness.

To reject the judgment of an eye witness, in such a case, would be to reject the evidence best calculated to throw light upon the subject of inquiry.

Again, suppose it to become important to ascertain the age of a person concerned in some past transaction. A very brief attempt to describe the marks, by which the question must be determined, would be likely to satisfy any one of the necessity of resorting to the opinion of the witness.