#### Eber B. Ward, *et al.,*Appellants, *v.*Oney Salisbury, Appellee.

APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.

In an action of assumpsit, brought to recover wages due for sailing a vessel by a captain, it was held that the defendants in such an action, for the purpose of mitigating damages, might introduce the testimony of a Harbor Master, although be was not skilled as a navigator, to show any fact within his knowledge respecting the management of the vessel, and to give his opinion whether such management wao skillful or unskillful.

This was an action of assumpsit on the common counts, for work and labor, brought by appellee against appellants, to recover wages due liim for sailing the steamer Pacific, as Captain. During the progress of the trial, the defendants in the Court below, introduced the Harbor Master of the port of Chicago, as a witness to show that the plaintiff managed the vessel unskillfally, in order to reduce the amount claimed. The facts of the case, upon which the opinioi is based, are sufficiently stated in it.

The cause was tried before Spring, Judge of the Cook County Court of Common Pleas, at the October special term, 1850, of that Court.

Several questions were presented in argument, which, not being referred to in the opinion of the Court, are not noticed here.

H. G. Shumway, for Appellants.

The interrogatory propounded to Durfee the Harbor Master-calls for *facts*in reference to the management of the Pacific. A witness not a professional man, may give his opinion in evidence, with the facts on which this opinion is founded. 17 Vermont, 499; 7 ibid, 158.

J. H. Collins & I. N. Arnold, for Appellee.

Treat, C. J.

This was an action of assumpsit brought by-Salisbury against the owners of the steamer Pacific, to recover compensation for services performed as master of the vessel. It appeared in evidence, that he commanded the boat during the year 1848. From May until October, she ran between Detroit and Buffalo; during the months of October and November, *372between Chicago, St. Joseph and Milwaukee. The defendants attempted to show in mitigation of damages, that the plaintiff exhibited a want of skill in conducting the vessel. A witness testified, that he did not manage the boat well, particularly in. going in and out of harbors. The defendants called a witness, who testified, that he was harbor master of the port of Chicago during the year 1848; that he had a good deal of knowledge of vessels, and knew something of sailing them, but did not understand the science of navigation, and was not a practical sailor. They then asked him, “How did the plaintiff manage the Pacific, in coming in and going out of the Chicago harbor?” The plaintiff objected to the question, on the ground that the witness was incompetent from the want of knowledge of navigation. The Court sustained the objection, and the defendants excepted.

The mode in which the plaintiff managed the boat, was a material inquiry on the trial. ■ The value of his services depended chiefly on the manner in which he discharged his duties as master. Any evidence, therefore, that tended to show negligence or unskillfulness on Ms part, was properly admissible in mitigation of damages. In this point of view, the Court erred in excluding the testimony of the harbor master. The interrogatory did not necessarily call for the opinion of the witness. It was clearly competent for him to state any facts within his knowledge respecting the management of the vessel. And, we think, his opinion, in connection with such facts, was admissible. He was charged with the execution of the harbor regulations. In the exercise of Ms duties, he necessarily became familiar with the character and condition of the harbor, and the manner in which vessels were brought into and taken out of port. His position would enable him. to detect any want of skill in the management of a particular vessel. If he witnessed the operations of the Pacific, while - entering and departing from the harbor, his opinion might go as far to enlighten the jury, as that of a professional seaman founded upon facts detailed by witnesses. It might, indeed, from the circumstances in which he was placed, be entitled to greater weight, than the mei'e opinion of an experienced navigator having no personal knowledge of the facts He should have been permitted to state the facts that came under Ms notice respecting the management of the vessel, and his opinion whether that management was skillful or unskillful. *373The question was relevant to a material issue in the case, and the answer might have had a controlling influence on the verdict. The ruling of the Court was erroneous, and, as it may have operated to the prejudice of the defendants, the judgment will be reversed, and the cau-se remanded.

- *Judgment reversed.*

Dissenting Opinion of Justice Trumbull.

In my judgment, the question propounded to the witness was incompetent, for two reasons. First, Because it assumed, that the witness had seen the Pacific coming in and going out of Chicago harbor, when there is no evidence in the record, that he ever saw the Pacific enter or leave that harbor. No proper foundation was laid for the question. The fact that the counsel objected to it for a wrong reason, would not prevent the Court from excluding it for a right one. The judgment is not surely to be reversed, because the Court below refused to permit an improper question to be asked, although the attorney may have urged a wrong reason for his objection.

Secondly. I am of opinion, that the question was improper for the reason assigned by the counsel. The object of the question clearly was, to draw out the opinion of the witness, as to how the plaintiff managed the boat.

The witness had shown by his previous testimony, that he did not understand the science of navigation; and I am not aware that it is any part of the duty of a harbor master, to take steamers in and out of port, or that he must necessarily have any knowledge upon that subject.

As a general rule, the opinions of witnesses are not admissible an evidence; and when they are admitted, it is upon the principle, that the witness from his profession or business, is supposed to possess some peculiar knowledge or skill in reference *to*the matter, about which his opinion is sought. The witness in this -case, is not only not shown to have possessed any such knowledge, but it is negatively .shown that he did not possess it.