#### *Lincoln *vs.*The Saratoga and Schenectady Rail Road Company.

In an action on the case against a rail road company for an injury sustained to the person of a passenger, through the *negligence*of the agents of the company, evidence of loss sustained *by*the plaintiff in his business in consequence of the injury received, is proper to aid the jury in estimating the plaintiff’s damages : and for that purpose the nature of the plaintiff’s business, its extent, and the importance of his personal oversight and superintendence in conducting it, may be shown; but the *opinions*of witnesses as to the *amount of the loss*aro inadmissible, *425Where the immediate injury is the breaking' of a leg, witnesses may he examined on the trial as to the then and probable future condition of the limb ; but inquiries as to the consequences of a hypothetical second fracture are not admissible.

It is'erroneous for a judge in such a case to charge a jury, that in estimating the damages, they may take into consideration the probable *expenses*of conducting the suit beyond the *taxable costs*and *counsel fees.*

This was an *action on the ease*for negligence, tried at the Saratoga circuit, in December, 1837, before the Hon. John Willard, one of the circuit judges.

The plaintiff was a passenger in a rail road car of the defendants, on his way from Saratoga Springs to Schenectady, on the 31st August, 18.36. A short distance below Ballston Spa, the car in which the plaintiff was, came in collision with a train of cars moved by a locomotive steam engine belonging to the defendants, proceeding from Schenectady to Saratoga Springs, and to avoid the probable danger of the collision, sprang from the car in which he was, and in so doing broke one of his legs about three inches above the knee. He ivas confined to his bed for six weeks, and did not arrive at Boston, the place of his residence, until about the first day of *December.*The fracture was in an oblique direction, and the fragment of the bone, when he became able to be removed, was drawn up to the extent of two inches ; so that there ivas not only a shortening but a deformity of limb. It seems that in cases of oblique fracture, it is difficult to keep the limb at its proper length. When he arrived home he was able to move about [ *426 ] with *crutches, but could not bear the whole weight of his body on the injured limb without pain, and could not attend to business which required active exertions. In *April,*1837, a professor of surgery in Harvard university, testified that he was then able to be out and walk tolerably well with the assistance of a cane, but no doubt he would be *permanently lame.*The plaintiff proved *actual expenses*for surgical attendance, board, &c. to the amount of $690. On the trial of the cause, his counsel asked Dr. St. John, who aided in setting his leg, whether in case of wrenching a leg in the condition of the plaintiff’s there was danger of serious consequences to the limb ; to which he answered that there was *danger;*that he had known it bring on a disease of the bone, and separate in a limb fractured like the plaintiff’s ; that such was not a common occurrence, but there was danger of it. He was then asked whether, according to his experience and observation, there was danger that a wrench to a limb fractured like the plaintiff’s, would bring on a disease that would occasion death : to which he answered that he thought there Avas danger. Both these questions Avere objected to by the counsel for the defendants, and the objections overruled. On cross-examination of this AYitness, he stated that he kneAV of a case in his own family, Avliere the bone was *separated*after the leg Avas healed ; but he kneAV of none where the patient had lost his life from such cause. On his re-examination he Avas asked what cases he knew where the bones had sepa*426rated. He answered that he knew a female who had the bone of her leg separated by a wrench after an oblique fracture ; the fracture took place *ten*years since, the leg was apparently as well cured as was' usual in such cases, and about *three*years afterwards the bone separated, and her life would undoubtedly be destroyed by it. He also knew of another case where the same process was going on, and had heard of two others. To this last question the defendants also objected, and the objection was also overruled.

The plaintiff then read in evidence the depositions of several witnesses, residents of the city of Boston, who testified that the plaintiff was a member of a mercantile firm in Boston, Carrying on the busi- [ *427 ] ness of jobbers of dry goods, to the amount of between $200,000 and $300,000 annually; that the plaintiff is the senior partner, the other members of the firm being young men brought up by him as clerks, that he has the principal interest in the firm, and previous to the injury, made purchases, had charge of the financial affairs of the firm, and exercised a general control and superintendence over its business. That the business season in the plaintiff’s line is in the spring, from 1st March to 1st June, and in the fall from 1st September to 1st December. That the injury to the plaintiff’s business from his absence must have been peculiarly great in the fall of 1836, by reason of the derangement of the financial affairs of the country, and the pressure in the money market. These witnesses all testified that they were well acquainted with the nature and extent of the plaintiff’s business, and expressed their *opinions*as to the amount of damage which he must have sustained in consequence of his absence : varying in their estimates from $3000 to $5000. They also testified as to the state of the plaintiff’s health, and his inability to attend to' business after his return home. The defendants’ counsel objected- to the introduction of the depositions in evidence, (except so far as they went to show the state of the plaintiff’s health,) as irrelevant and improper, going to prove *remote, contingent*and *barely possible*damages; insisting that the plaintiff was entitled to recover only *proximate*damages, or those *necessarily arising*from the injury ; and secondly, if such damages as referred to in the depositions, were recoverable, the testimony did not prove the fact — it was merely the opinions or conjectures of the witnesses, which ought not to be submitted to the jury, as it might have an improper influence on their minds in estimating the damages. The objection was overruled.

The circuit judge, after submitting the case to the jury upon the question of negligence, upon the question of *damages*instructed them that if the plaintiff was entitled to recover he was entitled to recover the necessary expenses incurred by him for surgical aid, board, &c.; that he was also entitled to recover for loss of time, the value of which *de- [ *428 ] pended upon the business in which he was engaged; that they must not, however, indulge in *fanciful conjectures*as to the probable gains *428which he would have made, had the injury not happened. That where a party like the defendant in this case is engaged in commercial business upon an extensive scale, the extent of the injury to his business was not susceptible of *direct proof,*and that the *opinions*of intelligent men residing in his neighborhood, engaged in similar pursuits and intimately acquainted with his business, when satisfactory reasons were given for such opinions, were entitled to great weight; but were not absolutely binding upon them. That the sufferings of the plaintiff from the pain endured by him should be taken into consideration. That in enforcing redress for an injury of this nature the plaintiff must necessarily incur expenses not covered by his taxable costs, and that in estimating the damages which are left by law to their discretion, there was no impropriety that they should without specific proof take such expenses into consideration; and finally that-the jury was not restricted to such damages as were already developed, but might take into consideration the probable influence of the injury on the future health and business of the plaintiff. To all of which charge, except that part of it which relates to necessary expenses, the counsel for the defendants excepted. The jury found a verdict for the plaintiff with *eight thousand dollars*damages. The defendants having excepted to the charge and to various decisions in the admission of testimony moved for a new trial on a *hill of, exceptions,*

*S. Stevens,*for the defendants.

The circuit judge erred in permitting the enquiries made of Dr. St. John as to the possible consequences of a future accident to the injured limb of the plaintiff. The testimony if given would have been totally irrelevant and could have no effect other than to induce the jury to'increase their verdict by giving contingent and merely possible damages in violation of the rule of law that the damage must be the natural consequence of the wrongful act and necessarily arising iron it. [ *429 ] 19 *Johns. *R.*223, 228. 18 *Wendell,*216, 229. 2 *Taunt.*314. A remote .consequence of an injurious act, cannot be given in evidence. 2 *Chitty's R.*198. 18 *Com. Law,*304, *S. C.*

The depositions or that portion of them which contained the *opinions*of the witnesses as to the probable damage sustained by the plaintiff in his business, ought not to have been received. Whether the plaintiff sustained any damage in his business in consequence of his absence, and if any what amount, was a question depending upon a great variety of circumstances. Instead of sustaining damage he may have been benefitted by his absence. Above all the testimony of the witnesses as to the *amount of damage*should not have been received. All facts having a bearing upon the question of damages they might speak to, but beyond that it should have been left to the jury to fix the amount. This was not a matter of science in which the opinions of *experts*are-allowed. 17 *Wendell,*161, *et seq.*

The judge erred also in his charge in instructing the jury that in estima*429ting the damages they might take into consideration the expenses of the plaintiff in prosecuting the suit over and above the taxable costs.

*A. L. Jordan & N.*Hill, *Jun.*for plaintiff.

The enquiries made of Dr. St. John were proper. The questions were not put to lay the foundation of a recovery for a *mere possible future injury,*but to show a *present*actual injury ; that the injured leg of the plaintiff, requiring greater caution and circumspection, and being more subject to a disease to which it was not formerly exposed, was of less present value than before the injury. The objection to the admission of the depositions in evidence cannot prevail, as it was not sufficiently *explicit ;*parts of the depositions were clearly admissible, and to have entitled the defendants to ask for their rejection, the portions deemed exceptionable should have been particularly specified. But allowing the objection to have been taken in due form, the judge did right in overruling it. The depositions show the extent of the business operations of the plaintiff, and the opinions of intelligent men conversant with his business, as.to the probable *amount of injury or loss sustained by him in [ *430 ] consequence of being disabled from bestowing his personal attention. That the plaintiff is entitled to an indemnity, is not denied ; but it is sought to be limited by the defendants’ counsel to such damages as were the direct and natural consequence of the wrongful act. It is admitted that for no other are the defendants liable ; nor is it claimed by the plaintiff that the defendants are responsible in damages for mere speculative gains which might have been made arising from a succession of adventures ; but it is insisted that it is not necessary the damages should be *immediate ;*if they necessarily, or by a chain of circumstances result from the injury inflicted, they are within the rule. As to the mode of showing the extent of the injury, none other could be adopted than that resorted to here : 1. Showing the amount of business ordinarily transacted by the plaintiff’s firm, the place he occupied in it, and the importance of the departments allotted to hjm ; and 2. The *opinions*of intelligent men as to the extent of the loss sustained. The value of a man’s time in reference to the profits to be made from active exertions in business, depends upon his usual receipts : the laborer earns $30 per month, the mechanist $60, the book-keeper $120, and in case of an injury 'similar to that inflicted upon the plaintiff, the damage sustained by either, resulting from a loss of time, may be ascertained with almost mathematical certainty. The same principle must be applied to the *merchant*as to the *book-keeper,*although the same degree of certainty cannot be attained. Then’ having ascertained the extent of the business of the plaintiff, instead of leaving it to the jury to conjecture what would be the probable profit accruing from such a business, or rather the loss probably resulting from the absence of the plaintiff, the depositions of witnesses capable of forming an estimate, are produced, in which they give their *opinions*as to the loss sustained. A *430more fit- case for the expression of the *opinions*of witnesses, cannot he imagined. The simple question is, is it better to leave the question of loss in this particular, to the unaided conjectures of the jury, or to give [ *431 ] them the benefit of the opinions of intelligent men, Conversant with the subject. As a general rule, the *opinions*of witnesses, it is conceded, are not received in evidence ; but to this rule there are many exceptions — and it is submitted, that whenever the matter to be established depends upon facts which cannot be communicated to the minds of jurors, so as to enable them to form safe and just conclusions, the *opinions*of witnesses, who from their science, skill, observation, experience, or peculiar knowledge do understand the true conclusions to be drawn from the facts, are admissible in evidence. With such evidence, the jury, under the instruction of the court in this cause, could not well do otherwise than come to a correct conclusion ; without such evidence, they would have been without guide or compass. In conclusion, what was said by the judge in reference to taxable costs, should not induce the court to grant a new trial. In actions for *torts,*the jury may, in their discretion, give *vindictive*damages, and the court will not for that cause interfere with it ; and surely a new trial will not be granted because the jury in making up their verdict instead of indulging in a capricious fancy, have taken into consideration the facts and circumstances of the case, to which their attention was directed by the circuit judge.

Nelson, Ch. J.

*By the Court,*There is nothing in the suggestion that the objection to the deposition was too general as it embraced matters admissible in evidence, and that, therefore, even if parts might be considered exceptionable, the admission was right. The counsel for the defendant in stating to the judge the reasons for the exclusion pointed specifically to the parts now urged as objectionable, and thus drew to them the attention of the adverse counsel and the court. There is no pretence that either could have been misled. The judge passed understandingly on the point. Besides, the competency of this species of testimony was expressly recognized in the charge, as the learned judge instructed the jury that the *opinions*of intelligent merchants, residing in the vicinity of the plaintiff and intimately acquainted with his business, being engaged themselves in the [ *432 ] same line, when sustained by satisfactory reasons, *were entitled to great weight in estimating the damages ; and to .this an exception was taken.

Were these opinions competent within the established rules of evidence ? The general rule is admitted that witnesses must speak as to facts, and facts too within their own knowledge. Opinions, belief, deductions from facts and such like, are matters which *belong to the jury,*and by which they arrive at their verdict; when the examination extends to these and the judgment, *432belief and inferences of a witness are inquired into as matters proper fof the consideration of a jury, their province is in a measure usurped : the judgment of witnesses is substituted for that of the jury. To this settled principle, which is and should be steadily and rigidly adhered to, exceptions have been made, and the material question before us is, whether the opinions admitted in this case fall within any of them. The exception in general terms, and to which most of the cases may be referred, is usually stated as follows : that on questions of skill and judgment, men of science and experience are allowed to give their opinions in evidence. These are admitted, for the reason that the witnesses are supposed to possess a peculiar knowledge and understanding of the subjects in controversy, beyond ordinary men, of which the jury are composed: subjects with which they have become familiar by study, or from observation and experience in the course of their particular occupations.

*Folks*v. Chadd, 3 *Doug.*157, is a leading case upon this subject. That was an action of trespass for cutting away a bank that had been erected to prevent the sea overflowing certain meadows. The defence was, that it contributed to fill up and choke *Wells' harbor.*, Experienced engineers were called to prove that, in their judgment, the bank was not the cause of the mischief, and that the cutting it away would not remove it. The evidence was objected to as being matter of opinion, that could not be the foundation for the verdict of a jury, which should be built upon facts. The court thought otherwise; and Lord Mansfield, in pronouncing judgment, said, that the opinion was deduced from facts which were not disputed. The situation of banks, the *course of tides, and of winds, and the [ *433 ] shifting of sands ; that the opinion deduced from all these facts was, that, mathematically speaking, the bank may contribute to the mischief, but not sensibly; the witnesses understood the construction of harbors, the causes of their destruction, and how remedied. He instanced actions for unskilfully navigating ships, where the question depended upon the judgment of those who understood such matters.

Upon the same ground, ship-builders are examined as to the seaworthiness of ships in actions on policies of insurance, even in cases where they were not present at the survey, *Peake's N. P. C.*25, and medical men as to the cause of disease, or death, in order to connect them with particular acts; also as to the sane or insane state of the mind; and this, although the professional witnesses found their opinions entirely upon the facts, circumstances and symptoms as proved by others. *Russ. & Ry. C. C. L.*456. So persons engaged in particular departments of trade may be called to express their opinion upon subjects connected with it, on which their experience and observation enable them to speak with more understanding than others. In *Chapman*v. *Walton,*10 *Bing.*56, an action against a broker for negligence in effecting policies of insurance, other brokers were called and examined as *ex**433*perts,*the question involved being one of skill in that branch of business. 2 *Starkie’s*R. 258. 10 *Barn. & Cress.*527. *Peake's N. P. C.*43. Upon the like ground, it is every day’s practice to take the opinion of witnesses as to the value of property — persons who are supposed to be conversant with the particular article in question, and of its value in the market: as a farmer, or dealer in, or person conversant with the' article, as to the value of lands, cattle, horses, produce, &c. These cases all stand upon the general ground of peculiar skill and judgment in the matters about which opinions are sought. *See*17 *Wendell,*136.

Now recurring to the case under consideration and testing it by the foregoing principles, it appears to me .impossible to maintain that it falls within this exception to the general rule, or within any of the cases that [* 434 ] have arisen and *may be regarded as illustrations of it. Where men of science or skill have been allowed to express their opinion, upon a given or admitted state of facts, if of equal standing and intelligence, there may be expected something like a general concurrence. I do not mean that the results would always follow with mathematical certainty; but deductions from the facts by the application of their superior skill and knowledge in the matter is supposed, by law, to lead to a degree of certainty that may be safely relied on — otherwise the rule would be worthless. In the case before us no such accuracy is attainable, or can be predicated from the facts on which the opinions are expressed. There may be a tolerable conjecture of the amount of damage, and merchants in the same line of business with the plaintiff, and residing in his vicinity, might carry it nearer to the truth than others; but their opinions can rise no higher than mere conjecture. In the nature of the case, no set or series of facts exist, to which the application of their peculiar knowledge would naturally lead to any thing like mathematical certainty. What do they state as the foundation of their opinions ? The amount of business; the ability and attention of the plaintiff; the business season ; the comparative inexperience of the partners ; the money pressure in the market, and the like. All this may be very proper for the consideration of the jury, and entitled to such weight in connection with all the other circumstances of the case in their estimate of the loss and damage, as they may think it deserves; but surely no mercantile knowledge applied to them can lead to any accurate or safe result as matter of opinion for their guide. Assume the whole to be true, and loss does not follow with any thing like the exactness that exists in matters of science and skill — more especially to any *given amount.*Even with the jury, the damage beyond the actual expenses out, can at best rise but little above conjecture : it is so in every case where they are called upon to estimate the loss of the plaintiff’s time. How serviceable it might have been to him, depends upon a calculation of the changes and vicissitudes of life, the casualties and fluctuations of business, utterly beyond the reach of human foresight. The most they *435can do *is to bring to the discharge of their duties a careful [ *435 ] and diligent consideration of the particular case, a knowledge and experience of the general condition and business affairs of mankind, to which all are more or less subject, a sound and enlightened judgment, and honest desire to arrive at truth and justice between the parties. No more can be expected ; no less justified. The result will usually be an approximation to reasonable indemnity, as near as the imperfection of human tribunals will admit.

I am also of opinion that some of the questions put in respect to the effect of the injury to the limb were pushed into consequences and conjectures too remote for the subject of judicial investigation. The present and probable future condition of it were proper matters for inquiry ; but the consequence of a hypothetical second fracture were obviously beyond the range of it, and calculated to draw the minds of the jury into fanciful conjectures.

The charge as to expenses beyond taxable costs and counsel fees in conducting the suit, as a particular item of damages to be taken into the account, I am also inclined to think was erroneous. These have been fixed by law, which is as applicable to cases sounding in damages as in debt. The point has been expressly adjudged in Massachusetts, 21 *Pick.*382, and we think founded on principle.

Upon the above grounds we are of opinion a new trial should be granted, costs to abide the event.