Taylor . Town of Monroe.

MARCIA L. TAYLOR vs. THE TOWN OF MONROE.

In a suit against a town for an injury from a defect in a highway, where the alleged defect was the want of a railing along an elevated part of the road, and the injury occurred in a manner so peculiar and exceptional as to put the necessity of the railing to a test that ordinary travel would not furnish, it was held that the experience of others who had passed safely along the same road was not pertinent, and evidence of it inadmissible in behalf of the town. Professional road builders, of experience in the business, who had examined the road, held to be proper witnesses as experts, and their opinions admissible, in connection with the facts sworn to by them, as to the necessity of a railing and the safe condition of the road.

The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of it, but whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue.

The elements that enter into the question of the reasonably safe condition of a highway or bridge are numerous and often difficult to be described; and for this reason it has long been the practice in this state to admit upon such a question the opinions of those who are not experts, but who have personal knowledge of the place in question, in connection with facts stated by them. The plaintiff alleged in her declaration "that she had been prevented from attending to her ordinary business." Held that under this allegation she could not show, for the purpose of enhancing damages, the loss of earnings in a special employment requiring skill and training.

TRESPASS ON THE CASE for an injury from a defect in a highway of the defendant town; brought to the Superior Court in Fairfield County, and heard in damages, after demurrer overruled, by Pardee, J. The court found the following facts:

Between the hours of seven and eight o'clock of the afternoon of the 10th day of August, 1871, the plaintiff, a single woman about thirty years of age, accompanied by her nephew, a boy about fifteen years old, was driving a horse attached to a light wagon along a highway running northerly and southerly within the limits of the town of Monroe. This highway passes down a steep hill about thirty rods in length, twentyfive feet from the foot of which and forming part of the highway is a bridge twelve feet in length, and of the same width, elevated four feet above a stream which crosses the highway.

Taylor v. Town of Monroe.

Along the easterly side of the bridge a pole resting on crotches set in the ground, one at either end of the bridge, had been placed for the purpose of a railing; at the northerly end it was about eight inches in diameter and extended a few feet from the bridge.

When the plaintiff began to descend the hill the horse took fright and ran rapidly down, mostly on the left side of the worked way. When she came to the crotch supporting the pole above mentioned, the left wheel was so far over the left edge of the raised highway as to come outside of the crotch, bringing the axletree against the same, and the body of the wagon under the end of the pole. The crotch was thereby drawn from its place, the pole was raised, the wagon was overturned, and the plaintiff was precipitated into the bed of the stream, and one end of the pole was thrown across her breast, whereby she was wounded, one rib being torn from its attachment to the breast bone, and she suffered a permanent injury to health, for which damages were to be assessed.

At the northerly end of the bridge the highway was so raised above the adjoining ground as to endanger the public travel, and on said 10th day of August, 1871, there was not a good and sufficient railing or fence on the easterly side thereof, and the highway was then and there out of repair, all of which was in consequence of the negligence of the town of Monroe. There was no contributory negligence on the part of the plaintiff.

Upon the hearing the defendants claimed, and offered evidence to prove, that the highway was not so raised as to endanger travel; that no railing was required to make the same safe for public travel; that the highway was an ancient one and was constructed and maintained in conformity to the experience of skilled road-builders; that the injury was not sustained by reason of the want of a railing, inasmuch as the left wheel was over the left edge of the raised highway and outside of the crotch when the wagon struck the same; and that the fact that the crotch was drawn from its position and thus let the pole go off with the wagon, in no way contributed to the injury, but that a firm and immovable railing would have caused a more serious injury to the plaintiff.

Taylor v. Town of Monroe.

For the purpose of supporting these claims the defendants asked of divers persons acquainted with the road, bridge and railing, the following question: "Has any accident or injury resulted to any person from the want of a railing on the cast side of the north approach to the bridge or on account of the insufficiency of the railing as it has existed at the bridge and causeway?" This question was objected to by the plaintiff and excluded by the court.

The defendants then placed upon the witness-stand two witnesses who were professional road-builders of twenty-five years experience in the business, and each of whom had seen and examined and described the road and bridge and railing and their surroundings at the place where the injury happened; and then the defendants' counsel asked each of them the following questions:

1. What is your opinion, based upon the facts you have testified to, as to whether this causeway, at any point north of the railing, is so raised above the adjoining ground as to require a railing in order to render public travel reasonably safe?

2. What is your opinion as a skilled workman in the construction of roads, as to whether or not the road from the bridge to the foot of the hill, supposing it to be as it was at the time of the accident, was reasonably safe and convenient for public travel?

3. Had a good and sufficient railing been erected and maintained at the time of this accident on the side of that part of the highway where the accident occurred, and where the highway is raised above the adjoining ground, would such railing have increased or diminished the danger to a carriage and occupant thereof, taking the line of travel used by the carriage occupied by the plaintiff and going at the rate of speed testified to by the plaintiff?

4. Is or not the elevation of the embankment and the slope of the bank, and the depth of the ditch or gutter such, north of the end of the pole, that if an ordinary vehicle were driven off the bank in the ordinary mode of driving, it would overturn the vehicle or cause any accident?

Taylor v. Town of Monroe.

To each of these questions the plaintiff objected and the court excluded the same.

The plaintiff claimed that by reason of the accident she had two of her ribs broken, and that the effect of the injury had been to subject her to difficulty of breathing at times, in the nature of asthma; that she was troubled at times to exhale the air from her lungs, and that these attacks would be brought upon her by similar conditions of atmosphere that would induce attacks of asthma in those disposed to asthma, and that by reason of these attacks she was incapable of lifting any considerable weight or performing any laborious work; and for the purpose of enhancing her damages, she introduced herself and other witnesses, who testified that for many years next before the accident she had been accustomed to work daily in a button shop as a button maker, boarding at her father's and walking about one mile to her daily work, and that in this employment she had been accustomed to earn from $300 to $350 a year, and that by reason of this accident she had been unable to perform this service and had sustained the loss of from $300 to $350 yearly since the accident to the day of the trial. To this evidence the defendants objected, on the ground that there was no averment in the declaration with regard to such special employment and earnings. The averment of the declaration relating to the matter was that by means of the injury the plaintiff "had been prevented from attending to her ordinary business." The court overruled the objection and received the evidence.

The court rendered judgment for the plaintiff to recover of the defendants the sum of $3,000. The defendants moved for a new trial for error in the rulings of the court.

W. B. Wooster and W. K. Seeley, in support of the motion. 1. The court erred in ruling out the evidence offered by the defendants, that no accident had been known to happen from the insufficiency of the railing. Calkins v. City of Hartford, 33 Conn., 58; Congdon v. City of Norwich, 37 id., 418; Littlefield v. City of Norwich, 40 id., 409.

2. The opinions of read-builders, as experts, were admis

Taylor . Town of Monroe.

sible upon the points as to which the enquiries of them were made. Porter v. Pequonnoc Manufacturing Co., 17 Conn., 249, 256; Dunham's Appeal from Probate, 27 id., 198; Kearney v. Farrell, 28 id., 317, 319; M'Kee v. Nelson, 4 Cowen, 356; State v. Pike, 49 N. Hamp., 423, 425; Cram v. Cram, 33 Verm., 19.

3. The defendants were not required to provide for so extraordinary an emergency as that of the plaintiff. It would be requiring more than reasonable safety. Lyman v. Amherst, 107 Mass., 339.

4. The allegation in the declaration that the plaintiff had been "prevented from attending to her ordinary business," did not warrant evidence as to her earnings as a button maker. Baldwin v. Western R. R. Corporation, 4 Gray, 335; Squier v. Gould, 14 Wend., 160; Wade v. Le Roy, 20 How., 41.

H. S. Sanford and G. Stoddard, contra.

1. The evidence as to others having passed safely over the road was properly rejected. The fact that other persons had crossed without injury would not show, or tend to show, the bridge and causeway to have been properly railed, as a large majority of travelers would doubtless pass with safety a bridge the only defect of which was the want of a railing. The decision in Calkins v. City of Hartford was upon the ground that the defect or obstacle which caused the plaintiff's injury, was of such a nature as of necessity to have been encountered and tested as to its character by all persons who passed the point in question. That element is entirely wanting here. Calkins v. City of Hartford, 33 Conn., 57; Kidder v. Inhabitants of Dunstable, 11 Gray, 342.

2. The opinions of the road-builders as experts was properly ruled out. The court is required to allow the opinion of witnesses where the subject of inquiry is not susceptible of direct proof, where the witness is unable to detail and describe the facts and circumstances so that the court can form an intelligent conclusion, and where the trier, from want of experience and from the peculiar nature of the subject, is unable to draw proper inferences from facts proved. The object of