#### Blair vs. The Milwaukee & Prairie du Chien Railroad Company.

*Evidence as to damages from injury to tlveperson*— Must *le of*facts, *not opinions.*

In an action by one of a mercantile firm against a railroad company for injuries to plaintiff’s person caused by defendant’s negligence, plaintiff cannot ask the other partner, as a witness for him, what was the amount of damages to said firm for a specified time, by reason of plaintiff’s absence caused by his injuries. It is not competent for the witness in such a case to state his *opinion*as the amount of such damages, but only to state *facts*from which the jury can estimate their amount.

APPEAL from the Circuit Court for *Milwaukee*County.

This action was brought to recover for injuries suffered by the plaintiff while being conveyed as a passenger in a train of cars on defendant’s road. The occasion on which the injuries were received was the same as that described in the preceding case of *Blair and wife*against the same defendant *{ante,*jd. 254), to which reference is here made. The single point on which the judgment was reversed here, will sufficiently appear from the opinion.

Yerdict and judgment for the jfiaintiff; and defendant appealed.

Finches, *Lynde &*Miller, for appellant,

as to the inadmissibility of the question put to Mr. Persons, cited *Lincoln v. S. & S. Railroad Go.,*23 Wend., 425; 3 Hill, 609 ; 5 id., 603 ; 4Denio, 318: 29 Barb., 425 ; 2 Corns., 515; 17 Wend., 161.

*Butler & Coltrill,*for respondent.

Cole, J.

We are of the opinion that there must be a new trial in this case, on account of the admission of improper evidence on the question of damages. Upon the trial, the witness Persons, among other things, was asked by the counsel for the plaintiff the following question: “ What was the amount of damage to the firm of *Blair &*Persons for the year 1863 by reason of the absence of *Mr. Blair *1”*This question was objected to, but the objection was overruled, and the witness pro*263ceeded to state tbat for tbat year be should estimate tbe damages to tbe firm at $4,000 or $5,000. It is now insisted tbat tbis question was improper, because it called for tbe opinion of tbe witness as to tbe amount of damage wbicb tbe plaintiff (or tbe firm of wbicb be was a member) bad sustained in consequence of bis absence, wbicb, it is claimed, is not a matter upon wbicb tbe opinions of witnesses were admissible. In support of tbis position, we have been referred to a number of cases, wbicb clearly sbow tbat tbe question, in tbe form in wbicb it was put, was improper. Tbe case of *Lincoln v. Saratoga & Schenectady R. R.*Co., 28 Wend., 424, is directly in point Tbat was an action brought by a passenger for injuries sustained through tbe negligence of tbe employees of tbe company. Tbe plaintiff was a member of a mercantile firm in Boston carrying on tbe business of jobbers in dry goods. And for tbe purpose of showing tbe amount of damages wbicb be bad sustained, tbe plaintiff offered witnesses acquainted with tbe nature and extent of bis business, who were permitted to give their opinions as to tbe amount of damage wbicb be must have sustained in consequence of bis absence. Tbe supreme court reversed tbe judgment and ordered a new trial, upon tbe distinct ground tbat tbe opinions of witnesses as to tbe amount of tbe loss were inadmissible, although they might be merchants residing in tbe vicinity of tbe plaintiff, and well acquainted with bis business. Tbe cotu’t held tbat while intelligent merchants residing in tbe vicinity and engaged in tbe same line of business with tbe plaintiff, might give a more accurate judgment than others as to tbe amount of damage, yet then opinions upon tbe subject were merely conjectures, and did not furnish a safe guide for tbe verdict of a jury. On questions of peculiar still and judgment, men instructed in tbe particular trade or science are permitted to give their opinions in evidence. But these cases all stand upon tbe general ground tbat they involve questions of science or skill, about wbicb opinions are sought. Tbis case, however, does not come within tbat class. Here, after tbe jury *264are informed as to tbe nature, character and extent of tbe business transacted by tbe firm of *Blair*& Persons ; of tbe business capacity and ability of tbe plaintiff; of tbe activity of trade &c., tbey are presumed to be able to estimate tbe loss wbicb be bas sustained in consequence of bis absence.

In tbe case of tbe *Rochester & Syracuse R. R. Co. v. Budlong,*10 How. Pr. R., 289, Mr. Justice SeldeN discusses tbe grounds upon wbicb tbe opinions of witnesses are received as evidence, and comes to tbe conclusion tbat wben a question is so framed as to embrace tbe legal rule or measure of damages, it is improper. Tbe rule of damages is, in all cases, a question for tbe court; and an answer to a question as to tbe amount of damages in a suit, must necessarily assume, be thinks, the legal rule with reference to wbicb tbe damages are to be assessed, and hence should be rejected. See an instructive opinion by tbe same judge in *Dewitt v. Barley et al.,*9 N. Y., 374, 388; *Same*Case, in 17 N. Y., 340; also tbe case of *Clark v. Baird,*9 id., 183, where tbe authorities are fully examined. In *The New England Glass Co. v. Lovell et*al., 7 Cush., 319; *Joyce v. Maine Ins. Co.,*45 Maine, 168; *Rawls v. American Mutual Life Ins. Co.,*27 N. Y., 282, tbe same question arose, and is more or less considered.

In view of all these authorities, it seems to us clear tbat tbe above question was improper and should have been rejected. Tbat it bad a direct bearing upon tbe question of damages is of course undeniable, and was calculated to'substitute tbe opinion of tbe witness for tbe judgment of tbe jury upon tbe facts of tbe case.

*By the Court.*— Tbe judgment of tbe circuit court is reversed, and a new trial ordered.

DowNER, J., did not sit in this case.

On a motion for a rehearing, tbe defendant’s counsel urged tbe court to decide some of tbe other leading questions as to tbe admissibility of evidence, presented by tbe record ; but tbe motion, was denied.