If adultery be a crime in that jurisdiction he is not compelled to answer; if it be not, he must answer (5). 2. In an action of breach of promise of marriage by A. against B., C., a witness, is asked if he had ever taken improper liberties with A. He declines to answer on the ground that an answer might disgrace him. This is no excuse (6). 3. In a prosecution against K. for selling liquor without a license, a witness is asked if he had bought spirituous liquors of K. The witness cannot refuse to answer (7). 4. A witness is asked on cross-examination | whether he has not been in the penitentiary, and for how long. He cannot refuse to answer (8). 5. A witness is asked whether he is not in the habit of drinking intoxicants. The question is proper (9). 6. A witness is asked whether he saw a certain person tarred and feathered on a certain night. If the witness was one of the trespassers he is not liable to indictment, for the offense is barred by limitation. Nevertheless, he refuses to answer on the ground that an answer might disgrace him. His refusal cannot be sustained (10). * cluding the testimony of a witness, merely because it will tend to disgrace himself, when others have a direct interest in that testimony, and it is essential to the establishment of their rights of property, of liberty, or even of life, or to the course of public justice. Upon such a rule, one who had been convicted and punished for an offense, when called as a witness against an accomplice, would be excused from testifying in any of the transactions in which he had participated with the accused, and thus the guilty might escape, and accordingly the better opinion seems to be that where the transaction forms any part of the issue to be tried the witness will be obliged to give evidence, however strongly it may reflect on his character.' 1 Greenl. on Ev., § 454 (4). We have no hesitation in adopting the rule thus laid down. A party ought not to be deprived of the benefit of testimony material to the issue of the case, nor ought the course of public justice to be defeated, merely because a witness may subject himself to disgrace or reproach. The privilege of the witness ought not to be considered as superior to the rights of individuals, or the demands of public justice. He is required to speak of a transaction in which he voluntarily participated. If he sustains a loss of reputation in conse In case 3, Shaw, C. J., said: "What crime would the answer of the witness tend to fix on him? Not drunkenness, for non constat because he buys, hequence of his disclosures, it is but the result of his will drink to excess. The fact of buying is not made criminal by the statute. * * Suppose a murder, arson or burglary committed in a house of ill-fame, could no witness be asked respecting it, because it would lead to the question whether he was there for an improper purpose? In case 6 it was said: "The authorities all agree that where the question is asked respecting a matter collateral to the issue, or with a view to impair the credibility of the witness, he is not bound to give testimony that will directly tend to disgrace him. There is however much conflict of opinion on the point whether he is bound to testify concerning a matter material to the issue. Such being the case, we are at liberty to adopt the rule that may best promote the rights of parties, and subserve the ends of justice. The views of Mr. Greenleaf on this subject are so forcible and sound as to justify a quotation at some length. He says: 'On this point there has been a great diversity of opinion, and the law still remains not properly settled by authorities. But the conflict of opinions may be somewhat reconciled by a distinction, which has been very properly taken, between cases where the testimony is relevant and material to the issue and cases where the question is not strictly relevant, but is collateral, and is asked only under the latitute allowed in a cross-examination. In the former case there seems great absurdity in ex ་ (5) R. v. Castro or Orton, Trial, vol. 2 (1875); and see Tillson v. Bornley, 8 Mo. 163 (1831). (6) Clark v. Reese, 35 Cal. 89 (1868). (8) Real v. People, 42 N. Y. 280 (1870). own wrong. In the present case the testimony sought was clearly material to the issue on trial. In either point of view the witnesses were bound to testify, and the court erred in excusing them." 1. On a prosecution for performing an abortion on B. in April, 1846, B. having testified to having had sexual intercourse with one C. before that time, is asked whether she had also before that had sexual intercourse with other persons. The question is irrelevant, and B. need not answer (11). 2. In the same case B. is asked whether she did not have a venreal disease in 1835. The question is irrelevant, and B. need not answer (12). an answer 3. A witness who is called as an expert as to alterations in hand writing is asked as to his occupation before he came to the country some years before. He refuses to answer because might degrade him. His refusal is proper (13). When," it was said in case 1, "a party intends to coerce an answer tending to degrade a witness, he is bound to show affirmatively that the question is relevant; there is nothing to show such relevancy in this case, and the court was right in refusing to compel the witness to answer the question." In case 2 it was said: "As the question put to the witness did not relate to any matter of fact in issue, or to any matter contained in his direct testimony, and as a truthful answer to it would tend to degrade him, he was not bound to answer." 1. In a civil action a witness objects to answering a question on the ground that it may revive an old debt against him. This is no excuse (14). (11) People v. Lobman, 2 Barb. 216 (1848). (13) Re Lewis, 39 How. Pr. 155 (1869). EARL, J. On the 17th day of May, 1880, and for a long time prior thereto, the plaintiff owned a certain lot of land numbered 104 in the county of Warren, in this State, and the defendant owned lot 116, situated north of 104, and lot 105, situated west of 104. The de fendant had leased lot 105 to Charles Hammond to party was to furnish half the seed and have half the "It is a matter of singularity," said Goldthwaite, J., in case 1, "that the question whether a witness objecting to answer could excuse himself on the ground that by answering he would subject himself to a civil action or pecuniary loss, was never solemnly decided in England until the precise question was put to the judges, upon the impeachment of Lord Melville in 1806. Four of the judges there gave opinions that a witness, under such circumstances, might excuse himself, and ought not to be compelled to answer; the other eight judges held the contrary opinion. Lord Eldon and Lord Ellenborough, among the latter, seem to consider the question even as somewhat offensive, for the former observes, in no measured strain, "that although his experience was equal, not only to any individual judge on the bench, but to all the judges, with their collective practice, yet he never knew a single objection to have been taken to an interrogatory proposed, because the reply to it would render the witness responsible to a civil suit." Lord Ellenborough, too, insisted that during the entire course of a life devoted to the practice of the law, and to the duties of the bench, he did not remember a single instance where the objection had been taken. Mr. Justice Chambre puts the matter thus: "The public must not call on a witness to give evidence, or do justice between A. and B., because such evidence might prevent the witness from acting unjustly by C. or D., to whom the witness might wish to act unjustly, or from whom he should wish to withhold a just debt. (See opinions of the judges, 1 Hall's Am. Law Jour. 225.) Owing to the difference of opinion between the judges, a declaratory act of Parliament was passed. In this country the rule has been set-opinion; that the witness could only state facts, and tled in most of the States, in conformity with the opinion of the majority of the English judges. (See cases collected in Cowen & Hill's Notes; 739.) a rule of the common law, it has never, we think, admitted of serious question that a witness is bound to answer any pertinent and material inter-experience in clearing land, was asked this question: rogatory, although his answer may have the effect to render him liable to a civil suit. That there may be exceptions to this, as a general rule, is quite possible, but the case on the record certainly is not entitled to be so considered." JOHN D. LAWSON. As There was evidence tending to show that the fire was set upon lot 116 by the defendant at a time when the land was very dry, and when the wind was blowing a strong gale in the direction of the plaintiff's lot. The defendant's witnesses gave evidence as to the condition of the land, the state of the weather, and of the wind and various other circumstances surrounding the fire. As a witness in his own behalf he testified that he was a farmer, and that he had cleared and seen others clear land, and then he was asked this question: "What do you say as to whether or not as to that time the fires were set there at that place, it was a proper time in your judgment for burning log heaps or a fallow that had been burned over?" The question was objected to on the part of the plaintiff as calling for a conclusion of the witness on a subject not proper to give an the jury must draw the conclusions. The trial judge remarked that the evidence would be received from the principle that the witness was shown to have superior knowledge upon that subject. The plaintiff excepted to the ruling, and the witness answered, "I thought it was." Another witness, who was shown to have had "How was it at that time as to being dry enough for a proper time to burn a fallow?" which was objected to The objection was overruled, and the witness an on the part of the plaintiff as calling for a conclusion. swered: "It was dry enough." Another witness, who was also shown to have had experience in clearing land, was asked this question: "What do you say as to whether it was a proper time or not to burn a fallow?" to which there was the same objection and rul EVIDENCE - OPINION OF EXPERTS -- WHEN IN- ing, and he answered: "I should say it was a proper time to burn it, and advised him that way that day." We think there was some evidence from which a jury could have found that the fire which destroyed plaintiff's buildings came from lot 116, and the jury may have found from the answers to these questions that the fire was set at a proper time, and thus may have been influenced to find their verdict in favor of the defendant. It is contended on behalf of the plaintiff that the questions objected to were improper, and that the subject of the inquiry was not one proper for expert evidence. The questions related to a vital point in the The principal claim on the part of the plaintiff was that in consequence of the wind and the dryness case. of the ground, and the wood, brush and timber, it was an improper time to set fire; and whether it was or not, was the main question to be determined by the jury if they reached the conclusion that the fire came from lot 116. These witnesses were therefore asked their opinions upon a controlling issue which was to be determined by the jury. In answering the questions they did not testify to facts, and they did not tell what they knew as matter of knowledge. They simply expressed opinions which were based upon the facts as they existed. The general rule of law is that witnesses must state facts within their knowledge, and not give their opinions or their inferences. To this rule there are some exceptions, among which is expert evidence. Witnesses who are skilled in any science, art, trade or occupation may not only testify to facts, but are sometimes permitted to give their opinions as experts. This is permitted because such witnesses are supposed from their experience and study to have peculiar knowledge upon the subject of inquiry which jurors generally have not, and are thus supposed to be more capable of drawing conclusions from facts, and to base opinions upon them, than jurors generally are presumed to be. Opinions are also allowed in some cases where from the nature of the matter under investigation, the facts cannot be adequately placed before the jury so as to impress their minds as they impress the minds of a competent, skilled observer, and where the facts cannot be stated or described in such language as will enable persons, not eye witnesses, to form an accurate judgment in regard to them, and no better evidence than such opinions is attainable. But the opinions of experts cannot be received where the inquiry is into a subject the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it. It is not sufficient to warrant the introduction of expert evidence that the witness may know more of the subject of inquiry, and may better comprehend and appreciate it than the jury; but to warrant its introduction the subject of the inquiry must be one relating to some trade, profession, science or art in which persons instructed therein, by study or experience, may be supposed to have more skill and knowledge than jurors of average intelligence may be presumed generally to have. The jurors may have less skill and experience than the witnesses, and yet have enough to draw their own conclusions and do justice between the parties. Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence, it is not needed that the jurors should be able to see the facts as they appear to eye-witnesses, or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordidary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them, and comprehend them sufficiently for the ordinary administration of justice. The rules admitting the opinions of experts should not be unnecessarily extended. Experience has shown that it is much safer to confine the testimony of witnesses to facts in all cases where that is practicable, and leave the jury to exercise their judgment and experience upon the facts proved. Where witnesses testify to facts they may be specifically contradicted, and if they testify falsely are liable to punishment for perjury. But they may give false opinions without the fear of punishment. It is generally safer to take the judgments of unskilled jurors than the opin A long ions of hired and generally biased experts. From a careful examination of many cases in this and other States, we are satisfied that the questions objected to in this case should have been excluded. In Fraser v. Tupper, 29 Vt. 409, in an action like this, a question entirely similar to this was held to be inadmissible. There the defendant offered to prove by farmers who were acquainted with the clearing of land by burning the same, and who were upon the land the day the fires were set, and who described to the jury as well as they could the position of the fires and the force and direction of the wind; that in their opinions it was a suitable and proper and safe day for setting the piles on fire with reference to the position of the piles in respect to the plaintiff's coal, and the force and direction of the wind. To this evidence the plaintiff objected, and it was excluded by the court, and to its exclusion the defendant excepted, and it was held that the ruling was proper. In the opinion of the court it is said: "There could be no difficulty in this case in the witnesses stating to the jury the position of the fires which were set by the defendant, their number and magnitude, the direction and course of the wind, the position, distance and character of plaintiff's property, and its exposure to injury from that source. The jurors, upon the question whether the defendant exercised proper care, could form as definite opinion from the facts stated by the witnesses as the witnesses themselves. The subject-matter is not one of science or skill, but is susceptible of direct proof, and in most cases the triers themselves are qualified from experience in the ordinary affairs of life, duly to appreciate the material facts when found. If there is any materiality attached to the force of the wind on that day we do not see any difficulty in conveying a true idea of it, sufficient at least for all practical purposes. In Higgins v. Dewey, 107 Mass. 494, the action was also like this, and the defendant offered to prove by a surveyor and civil engineer of many years' experience in clearing land by fire, who had observed the effects of wind on fires in different localities, and had been upon the land where the defendant set his fire and made a plan of it, and was acquainted with the sur. rounding country, that there was no probability that a fire set under the circumstances in the case as described by the witnesses would be communicated to the plaintiff's land; but the judge excluded the evidence, and his ruling was held to be proper on the ground that the evidence offered related to a subject within the common knowledge of the jury. S.C.,9 Am. Rep.63. In Luce v. Dorchester Mutual Fire Ins. Co., 105 Mass. 297, the action was to recover for a loss on a policy of insurance against fire upon a dwelling house which the plaintiff had left unoccupied at the time of the loss, and for some time before; and the opinions of witnesses that leaving a dwelling house unoccupied for a considerable length of time increased the liability to be destroyed or injured by fire were held to be inadmissible, on the ground that the subject was within common knowledge. S. C., 7 Am. Rep. 522. jurors generally might be presumed to have sufficient knowledge of them to enable them to discharge their duty when the facts were placed before them, that it was safer to rely upon them than upon the opinions of witnesses, however expert they might be. Here the subject of inquiry related to the common elements of fire, and wind, and dry wood, and brush, and timber, with which every man has some acquaintance; and whether, under all the circumstances, it was a safe, prudent or proper act to set a fire, a jury with the common experience which, if not all men, most men have, would be sufficiently competent to form an opinion. This is not a case where it was impossible to place the facts before the jury. The character of the wind, condition of the soil as to being dry or not, the character of the brush and timber, the nature of the ground, the In Sowers v. Dukes, 8 Minn. 23, the action was to recover for a breach of contract in neglecting to build and keep in repair a fence around a certain field whereby plaintiff's crops were injured. Upon the trial the plaintiff, a witness in his own behalf, was asked this question: "Was the fence a proper fence to turn stock, and could they easily put their heads through between the fence and rider?" This question was objected to on the ground that the jurors were the proper judges as to whether the fence was sufficient after it had been described. The objection was overruled, and the witness was permitted to answer; and the question was held to be incompetent, and the judg-distance, exposure, every thing, could be proved so that ment was reversed for that reason. It was held that the witness should have stated the facts; that the jury should have based their judgments upon the facts, and that it was not a proper subject for opinion evidence. In Enright v. S. F. & S. J. R. Co., 33 Cal. 230, in a suit against the defendant for injury to plaintiff's cattle caused by an insufficient fence, it was held that the evidence of farmers that the fence was sufficient to turn cattle was improper. In Bills v. City of Ottumwa,35 Iowa,109, the defendant was sued for injuries to the plaintiff alleged to have been sustained in consequence of the bad condition of the street, which caused him to be thrown from a wagon loaded with hay; and it was held that the opinion of a farmer that a wagon loaded in the manner in which the one was upon which the plaintiff was riding was not safe for riding upon over ordinary roads was inadmissible. In Concord R. v. Greely, 23 N. H. 237, in a proceeding to assess damages for a right of way of a railroad, it was held that the opinion of a farmer as to the effect upon a farm of a railroad passing through it was inadmissible. In Paige v. Hazard, 5 Hill, 603, in an action for negligence in injuring and sinking a canal boat, the plaintiff, after proving the cause of action as alleged, called a witness, who testified that he was a boatman, and knew the boat in question previous to her being injured; that he had raised sunken boats and caused them to be repaired, and he was then asked the following question: "From the description of the situation of the boat, as given by the witnesses, what would the damage be?" and it was held improper, and that the witness' answer was inadmissible. In Teall v. Barton, 40 Barb. 137, the action was brought to recover damages caused by fire communicated by a steam dredge, and it was held that a question put to a witness who had had experience, as to whether he considered it dangerous to use a steam dredge without a spark-catcher, was properly overruled, it not being a question of science or skill, and not falling within the rule relating to evidence by experts. In McGregor v. Brown, 10 N. Y. 114, the action was by a landlord against his tenant for waste; and it was held that the opinions of the witnesses that the acts complained of were not injurious to the inheritance, and therefore not waste, were inadmissible. In all these cases it was held that the witnesses should be confined to a statement of the facts, and that it was the province of the jury to draw inferences and form judgments. In most of them it was as probable as it was here that some of the jurors might not know as much about the subject of inquiry, and not be as capable of forming opinions or drawing inferences from the facts as the witnesses; and yet it was held, as the subjects of inquiry were of such a nature that the jury would have substantially as correct knowledge in reference to it as the witnesses; if not as correct, they could acquire knowledge sufficiently correct to enable them to discharge their duty as jurors. We have carefully examined the numerous cases cited in reference to this evidence in the brief of the learned counsel for the defendant, and none of them sustain its admission. They show that farmers may be permitted to give their opinions of the value of farms, and farm stock and produce; that witnesses may give their opinions on questions of identity, or whether a person is under the influence of liquor, and as to many other matters. There is a broad range for expert evidence, but none of the authorities go far enough to hold that this evidence is within the proper range. The question of expert evidence was not involved in the case of Hays v. Miller, 6 Hun, 320; 70 N. Y. 112. The action in that case was brought to recover damages caused by fire to the lands of the plaintiff's estate through the alleged negligence of the defendant; and the referee, instead of passing upon the question of negligence directly as one of fact, made special findings of the circumstances, and from those found negligence as a conclusion of law, and he ordered judgment in favor of the plaintiff. The question under consideration upon the appeal was whether the inference of law was justified by the facts found. The appellant claimed that it was the duty of this court to review the conclusions of the referee, and decide, as a matter of law, whether the facts and circumstances found by him established that the burning upon the defendant's land was conducted in an improper and negligent manner, or at an improper time and season, or whether it was conducted in a proper manner and at a proper time; and we held that this court was not competent to draw the conclusions and inferences from the facts; that that was a matter for the referee, and that we were concluded by the inferences and conclusions drawn from the facts by him; and in discussing that question some language was used by the judge writing the opinion in this court, which, it is claimed, favors the contention of the respondent here that these questions were proper to elicit expert evidence. But as we have seen, the learned judge writing the opinion did not have in mind the subject of expert evidence, and was simply discussing the competency and power of this court to draw inferences from facts and circum. stances found by the referee; and it was held, as we always hold in such cases, that the inferences are for the triers of facts. We are therefore constrained to reverse this judg ment and grant a new trial, as we think an important rule of evidence was violated. To uphold the propriety of these questions would carry the rule of expert evidence further than it has ever been carried in this State, and would be an unwarranted invasion of the rule which confines witnesses to facts and excludes their opinions. It is important to maintain the rule in its integrity, and to permit as few invasions of it as the proper administration of justice will allow. The judgment should be reversed and a new trial granted, costs to abide the event. All concur except Miller, J., dissenting. Judgment reversed. THROWING MAIL NEW YORK COURT OF APPEALS, DEC. 16, 1884. CARPENTER V. BOSTON & ALBANY RAILROAD CO.* One waiting on the platform at a railroad station for a train, and injured by a mail bag thrown from the train while in motion, such throwing being customary and well known to the company, may maintain an action against the railroad company. A PPEAL from judgment of the General Term, third This action was brought to recover damages for injuries alleged to have been caused by defendant's negligence. Plaintiff desiring to take passage on defendant's road, and having purchased a ticket, went out on the platform of the depot to wait the arrival of an approaching train. The train had a postal car attached ahead of the passenger cars. As said car passed the platform a heavily-loaded mail bag was thrown therefrom by the postal clerk or agent in charge, and struck plaintiff. Charles L. Beale and R. E. Andrews, for appellant. John Cadman, for respondent. DANFORTH, J. The plaintiff was injured before the actual commencement of his journey, but he was lawfully on the platform because he was a passenger, and was approaching the train, as the defendant concedes. "in the usual and ordinary way," to enter the car on which he had purchased a right to travel. The law in such a case is well settled. It imposes an obligation on the railroad company to take reasonable care that a person holding that relation to it shall while on its premises be exposed to no unnecessary danger or one of which it is aware, and requires it to provide for him a safe passage to the train. It is obvious that was not done in this case. The plaintiff was knocked down, and severely hurt by a loaded mail bag thrown from the postal car while the train was in motion, and the only answer to his demand for compensation is that the missile was negligently thrown by the person in charge of the mail car, an employee or servant of the United States, and not of the company; that he was an independent agent, and hence the defendant says, it is not liable for his act. In support of this contention its learned counsel cites Norton v. Western R. Co., 15 N. Y. 444; Blair v. Erie R. Co., 66 id. 313; S. C., 23 Am. Rep. 55; Penn. R. Co. v. Price, 96 Penn. St. 256; 23 Alb. L. J. 69; S. C., 14 Am. Rep. 190; and Putnam v. Broadway, etc., R. Co., 55 N. Y. 113. I am unable to give to those cases that consequence. The Pennsylvania case was an action against a railroad company for damages for the death of a postal clerk, caused by a collision. A recovery was denied, but the question turned solely upon the construction of a statute of that State. It has no application here. But if it had, the decision is directly opposed to that of this court in cases also cited by the respondent, viz.: Norton v. Western R. Co., and Blair v. Erie R. Co., *To appear in 97 N. Y. supra, in each of which a recovery was had on the ground that the defendant owed a duty to the person injured (in one case a postal clerk and in the other an express agent), and neglected to perform it. That principle, we think, the plaintiff may also successfully invoke, and find support in the other case, Putnam v. Broadway, etc., R. Co., supra cited by the respondent. It was there held, in substance, that a railroad company was bound to exercise the utmost vigilance, not only in guarding its passengers against careless interference by others, but even against violence, and if in consequence of neglecting this duty he receives injury, which in view of all the circumstances might have been reasonably anticipated, it is liable. The defendant prevailed in that case on the ground that the mischief was one which it had no reason to expect, and so was under no obligation to guard against. But if it had been made to appear that he who made the assault was vicious and accustomed under similar circumstances to do hurt, and the defendant had been notified of the fact, a duty would, as the case also holds, have been imposed upon it either to remove him from the car, or inform its other passengers of their danger, and failing to do so, would be responsible for such harm as he occasioned. To the same effect is Muster v. C. M. & St. P. R. Co., 21 N. W. Rep. 223, Sup. Ct. of Wis. There the plaintiff was at work for the defendant at its depot, standing on a scaffold erected by it; the defendant's train, of which a mail car formed part, ran past, and a mail bag thrown from it by a postal agent struck the leg of the scaffold with such force that it fell and the plaintiff was injured. He failed in his action. Upon appeal the court in answer to the claim that the defendent was negligent in not informing the plaintiff of his peril said: "All the evidence on that subject is to the effect that the mail bag was usually discharged near the mail catcher, which was two hundred feet west of the depot, and there is no testimony whatever that it had ever before been thrown off at the depot," adding: "The company is not chargeable with notice that it was likely to be thrown off at the depot, and hence was not required to guard, by notice or otherwise, against an accident to the plaintiff resulting from its being thrown off there on the occasion in question." In such cases no doubt scienter is the gist of the action, and in those cited it was lacking. In the one before us, it was clearly established. The defendant constructed the postal car and owned it. It was occupied under defendant's permission for a certain use, and it may be conceded that there was nothing in the nature of that use to require the defendant to expect that the contents of the car would be violently cast upon the platform while the train was in motion, and before the passengers thereon could reach the cars. Had this accident therefore happened on the first passage of the car, the defendant might be excused, as in the case cited, on the ground that the mere act of the postal clerk in throwing off the mail bag at that place, without the previous knowledge of the defendant of his intention to do so, was not negligence on its part. It But the fact is quite otherwise. The practice which led to the accident was a familiar and daily one. was proven by uncontradicted evidence that this method of discharging mail bags from the postal car, upon the platform provided for passengers, and while they were upon it and exposed to injury, had prevailed for a long time, under circumstances from which notice to the defendant might be fairly implied, and with the actual knowledge of the defendant's agents, in whose presence the act was frequently, if not daily performed, and so far as appears without the slightest objection on their part. They were therefore chargeable with notice that the mail bag was |