Supreme Judicial Court of Massachusetts decides, in Doyle v. Fitchburg R. Co., that an employee riding on its train as a passenger is not a free passenger, though his ticket is such as the company issues only to its employees working in Boston and living at some other place on its line; and that a railroad company cannot by contract with a passenger whose ticket is not a gratuity exempt itself from liability for its negligence. The court says:

The ticket was only given to employees and not to all of those, but, so far as appears, only to such as worked in Boston, and lived, on the line of the railroad, in some other place. It had reference, therefore, to special circumstances attending the performance of services for the company, and the arrangement well may have been regarded as mutually advantageous. By it the defendant was enabled to obtain the services of those who did not live in Boston, and thus to draw its employees from a larger body, subject only to the expense of their transporta. tion; and the plaintiff's intestate was enabled to enter the defendant's employment on equal terms, as to wages, with those living in Boston. Without speculating as to what the rights of the plaintiff's intestate to the ticket would have been if at any time he had left the defendant's employment before the end of the month, we think it plain, as already stated, that, as this case stands, the ticket properly cannot be regarded as a gratuity.

The defendant contends, however, that, even if the plaintiff's intestate was not a free passenger, the plaintiff cannot recover, because of the stipulation on the back of the ticket, to which the plaintiff's intestate must be presumed, by accepting the ticket, to have assented. In this respect this case raises a question which it was not found necessary to decide in the former case, and which does not appear to have been directly decided in this commonwealth. We assume that if the ticket had been a gratuity the contract on the back of it would have precluded a recovery, and that it would have made no difference that the negligence was gross. Quimby v. Railroad Co., 150 Mass. 365, 23 N. E. Rep. 205; Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. Rep. 1069; Griswold v. Railroad Co., 53 Conn. 371, 4 Atl. Rep. 261. How far common carriers may go in contracting to be relieved from the consequences of their own negligence and that of their servants is a matter on which different courts have their different views, and on which, in some instances, courts within the same jurisdiction have expressed themselves differently at different times. It is clear that they have not an unlimited power of contract in that respect. A private individual may refuse to transport a person from one place to another unless the latter will agree to assume all risk of injury. But a railroad corporation would have no right to insist, as a condition of carrying a passenger, that he should make such a contract. This arises out of the nature of the service which they undertake. They may prescribe rates of fare, and reasonable regulations for the safety of passengers and the conduct of the business in which they are engaged; but, if the passenger is willing to conform to them, they cannot insist that he shall accept the risk of accident, as a condition of being carried. But the question now is, what is the effect of such a contract voluntarily entered into by a

passenger who in other respects occupies the position of a passenger for hire? There is a dictum in this State to the effect that such a contract would not relieve a railroad company from liability for injuries caused by its own negligence or that of its servants. Quimby v. Railroad Co., 150 Mass. 371, 23 N. E. Rep. 205. And we think that it must be regarded as settled in this commonwealth that such a contract in regard to the carriage of goods would not exempt a railroad from liability for its own negligence, or that of its servants. School Dist. in Medfield v. Boston H. E. R. Co., 102 Mass. 552, 556; Squire v. Railroad Co., 98 Mass. 239, 246; Fonseca v. Steamship Co., 153 Mass. 553, 557, 27 N. E. Rep. 665; Hoadley v. Transportation Co., 115 Mass. 304; Grace v. Adams, 100 Mass. 505. Although the liability of a carrier of merchandise is that of an insurer, and the liability of a carrier of passengers is measured by the highest degree of care which human foresight reasonably will admit of, we see no valid reason for holding that in the former case the carrier cannot be exempted from his own negligence, and that in the latter he may. The object in both cases, as is said in Railroad Co. v. Lockwood, 17 WaH. 357, 377, 378, is to secure the utmost fidelity and care in the performance of their respective duties; and this object, in the case of the passenger carrier as in that of the merchandise carrier, can be accomplished more satisfactorily by denying them the right to contract for exemption from liability for their own negligence and that of their servants than in any other mode. The powerful and dangerous agencies usually employed, the absolute control of them which they have, the trust necessarily reposed in them, the compulsion which they might otherwise exercise, and the public nature of their service under the rule, we think just and reasonable. The law in England and in some of the States here is otherwise, but the great weight of authority in this country is against the right of a common carrier to contract for exemp tion from the consequences of its own negligence, or that of its servants. Railway Co. v. Stevens, 95 U. S. 655; Railroad Co. v. Lockwood, 17 Wall. 357; Railway Co. v. Selby, 47 Ind. 471; Rose v. Railroad Co., 39 Iowa, 246; Railroad Co. v. Curran, 19 Ohio St. 1; Annas v. Railroad Co., 67 Wis. 46, 30 N. W. Rep. 282; Railroad Co. v. Henderson, 51 Pa. St. 315; Jacobus v. Railroad Co., 20 Minn. 125 (Gil. 110); Railroad Co. v. Ivey, 71 Tex. 409, 9 S. W. Rep. 346; Carroll v. Railway Co., 88 Mo. 239; Willis v. Railway Co., 62 Me. 489; Flinn v. Railroad Co., 1 Houst. (Del.) 469, 501, 502; Railroad Co. v. Simpson, 30 Kan. 645, 2 Pac. Rep. 821; Railroad Co. v. Hopkins, 41 Ala. 486; Railroad Co. v. Wynn, 88 Tenn. 330, 14 S. W. Rep. 311; Maslin v. Railroad Co., 14 W. Va. 180; Railroad Co. v. Sayers, 26 Gratt. 328; Orndorff v. Express Co., 3 Bush, 194; Taylor v. Railroad Co., 39 Ark. 148; Berry v. Cooper, 28 Ga. 543; Express Co. v. Moon, 39 Miss. 822; 3 Wood, Ry. Law, p. 1576, § 425. See, contra, Peek v. Railway Co., 10 H. L. Cas. 473; Kenney v. Railroad Co., 125 N. Y. 422, 26 N. E. Rep. 626; Mynard v. Railroad Co., 71 N. Y. 180; Nicholas v. Railroad Co., 89 N. Y. 370. If the question were a new one in New York, it is pos sible that a different rule might be established from that which now prevails. See Mynard v. Railroad Co., supra; Nicholas v. Railroad Co., supra. In the case of free passengers, it has been held that, since the carrier is not bound to transport them, it may impose such terms, short of willful negligence or injury, as it chooses, as a condition of carrying them. Quimby v. Railroad Co., supra; Rogers v. Steamboat Co., supra; Griswold v. Railroad Co., supra. But, in the absence of any special contract or stipulation,

the carrier is bound to exercise the same degree of care toward a free passenger as toward a passenger for hire. Quimby v. Railroad Co., supra; Rogers v. Steamboat Co., supra. So, if a passenger insists upon riding, or is required by the nature of his occupation to ride, in a place not provided for passengers, it has been held that the carrier properly may say to him that he must take the risk however arising. Hosmer v. Railroad Co., 156 Mass. 506, 31 N. E. Rep. 652; Robertson v. Railroad Co., 156 Mass. 525, 31 N. E. Rep. 650; Bates v. Railroad Co., 147 Mass. 255, 17 N. E. Rep. 633. And, in the case of merchandise, it has been held that the carrier may properly limit its liability in various ways, so long as it does not claim exemption from its own negligence, or that of its servants. School Dist. in Medfield v. Boston H. E. R. Co., supra; Squire v. Railroad Co., supra; Hoadley v. Transportation Co., supra; Grace v. Adams, supra. None of these cases support the defendant's contention that in the case of a passenger for hire, who is being transported as such passengers usually are, the railroad company may contract to be relieved from liability for injuries caused by its negligence, or that of its servants. The plaintiff's intestate was, as we have already seen, such a passenger, although in the defendant's employ; and the contract on the back of the ticket was therefore invalid, so far as it purported to exonerate the defendant from liability for its negligence, or that of its servants. Exceptions overruled.

EXPERT TESTIMONY.

The practice of admitting the testimony of experts is of very ancient origin. The Roman law provided that persons "artis periti" might be summoned by the judge in order that he might inform himself as to matters embraced by the various trades and professions in their several specialties. Likewise many of the nations of Continental Europe at an early date introduced into their laws provisions for admitting the testimony of the expert. It was a requirement of the Criminal Code of Charles V., which was drawn up at Ratisbon in 1532, that medical expert testimony should be, taken wherever death was supposed to have occurred through violence. Francis I., after the publication of the Carolina Code, decreed that both physicians and surgeons should be legally required to act in a medico-legal capacity. Henry IV. (1606), provided that his chief physician should be empowered to appoint two surgeons in every city or important town, whose duty it should be to examine and report upon all wounded or murdered men, and Louis XIV. decreed that physicians must always be present with surgeons at the examination of dead bodies.2 About the first book written upon the subject was

of law. A very early English record shows, in a case of mayhem, a demand that the court examine the wound to decide as to whether there had been a maiming or not, and, as the court was unable to reach a decision, a writ was issued to the sheriff to cause "medicos, chirurgicus de melioribus ad informandum dominum regum et curiam venire.” The year books also show several cases into which expert testimony was, of necessity, introduced.3 Expert testimony may then be well said to have grown up with the common law, or, at least, to have become a recognized part of it at a very early date. As to the wisdom of admitting the testimony of the expert there is a wide divergence of opinion. The mind looks with a natural suspicion upon the witness whose testimony is bought and paid for; added to this, but more particularly within the domain of medicine there has been presented of late, all too frequently, the spectacle of two experts upon the witness stand, both of equally exalted reputation, at a total variance of opinion as to the subject upon which they were called upon to testify. Mr. Wharton,1 quoting from the New York Evening Post, presents the following excellent example of this lamentable condition of affairs: "A striking instance of an unexpected source of error in scientific investigation was witnessed in the last case tried by Mr. Justice Jones, the Superior Court in this city (New York), being the case in which the house of J. & J. Coleman established their right to a bull's head as their trade-mark on mustard. Professor X, one of the most celebrated analytical chemists of New York, a witness called by the defendant, had alleged, as the result of his experiments, that mustard contained over eleven per cent. of starch. Two other analytical chemists, one of them, Professor Chandler of Columbia College, alleged that mustard contained no starch. The evidence was in this conflicting condition when both parties rested and the case was adjourned until the next morning for argument. In the meantime Professor X applied to the counsel of the defendant to move to so far open the case as to allow him to vindicate by actual experiment in open court, the correctness of his statement as to the existence of starch in mustard. The motion was made and granted, and on the fifth of December last, the court room presented the appearance of a chemical laboratory. The professor, with his assistants prepared mustard for experiment in open court by pounding the seed in a mortar. He placed the crushed seed in distilled water and boiled the mixture over a spirit-lamp. He then threw some of the solution on sheets of filtering paper, and applied his test an ited the characteristic blue

made experiments, which in his view demonstrated that starch did not exist in mustard, and stated that he was not satisfied with the experiments that had been made by the defendant's witness. "Why," said the defendant's counsel, "are not you satisfied with the reaction for starch exhibited by Dr. X, on a dozen or more sheets of filtering paper?" "I am not certain to begin with," said Professor Chandler, "that the paper would not have produced that reaction without the mustard." Whereupon the counsel handed to the witness some of the clean paper, and asked him to apply the test himself. He did so, and the result was a deep blue, thus showing the illusory nature of the prior tests, and that the experiment was entirely worthless as a proof that starch was contained in mustard. In the Guiteau trial occurs another example of the inaccuracy of this kind of testimony. On page 1648 of the trial report, we find the following: "Q. (By Mr. Scoville for the defense.) "But insanity does necessarily mean disease of the brain?" Ans. (By Dr. Gray a medical expert.) "Insanity necessarily means that there is a conjunction or combination of disease of the brain with mental disturbance." On page 1673 of the same report we find: Q. (By Mr. Scoville.) "The disease itself, I understand you to say, is never inherited?" Ans. (By Dr. Gray.) "Never, insanity is never inherited as a disease." And on pp. 1676, 1677, we find Mr. Scoville introducing five statistical reports of cases of the hereditary transmission of mental diseases drawn up by Dr. Gray as medical superintendent of the New York Lunatic Asylum, for the years 1879, '80, '84, '85, '86. We find the rule laid down that if a man be "compos mentis” he can make any will, however complicated; if not, he can make no will, however simple; and the main question seems to be: What state of mind constitutes "compos mentis." Then, in Stewart v. Lispenard, we find it decided that the capacity to make the particular will in question is the true test, and although this case is of earlier date than that in 25 N. Y. 9, we find in the case of Van Guysling v. Van Kuren, that the court completely ignored Delafield v. Parish to follow it. Since the case of Stewart v. Lispenard there have been various minor court decisions in New York, many of them at a total variance of opinion as to what was held in Delafield v. Parish. Surely this is as wide a divergence of opinion as ever existed between two medical experts. It is clear that we cannot do without the testimony of the expert. In 7 Rep. p. 19, we find it laid down that, "Omnes prudentes illa admitere solent quæ probantur iis qui in arte sua bene versati sunt." The whole question hinges not upon the admission of the testimony of the expert but upon his capacity and capability. We cannot expect our judges and juries to be storehouses of scientific knowledge. Abolish expert testimony completely, and the cases involving questions of a

5 26 Wend. 255.

6 35 N. Y. 70.

scientific or artistic nature, if ever rescued from the chaos into which they must of necessity sink, will all too frequently be decided in a manner which the testimony of the expert witness, if admitted, would have rendered impossible. That the sciences, and more particularly that of medicine, are by no means thoroughly developed, will account for much of the contradictory testimony of experts. Then, if we carry in mind the fact that such testimony is, after all, only "opinion" the testimony of experts may be received in suitable cases and will prove of no little value to both court and jury. I dismiss, as utterly untenable, the opinion that expert testimony is given as paid for, or, in other words, may be purchased. I do not believe that an expert can be found who will prostitute the science to which he has devoted himself, the reputation he may possess among men of his own genius, for the sum of money, necessarily small, which he may receive as remuneration for his services in a court of law. I believe the blame for many of the apparent contradictions in the testimony of experts may be fastened upon the members of the legal profession with whom they are brought in contact during the progress of the trial. The incompetency of examining counsel all too frequently detracts from, rather than enhances, the value of an expert's testimony. I quote, as an example, a question recently put to an electrical expert in an action in one of the lower courts of New York: "What would be the effect upon a man if he touched a wire through which a current of electricity sufficient to drive a heavy car up a steep hill, was flowing?" The exact point to be ascertained was, would such a current be sufficiently powerful to cause a man, mounted upon a telegraph pole, to lose his balance? But fearful, no doubt, lest the question, in such form as would render it intelligible to the witness. should prove a boomerang, the examiner carefully veiled it and it might as well have been omitted. This one, of many instances, will illustrate the fact that if much of the testimony of an expert be ambiguous and apparently contradictory, he is not always the sole person to be blamed. If the expert be examined by one of his own profession, who, at the same time is a member of the legal profession, as was the case in the recent trial of Dr. Buchanan, for murder, in New York city, a decidedly better result will be obtained, though such a scheme is unfortunately not feasible in many instances. I am, however, of the opinion that the one side may, in cases where some doubt exists as to the scientific phenomena involved, obtain, by skillful questioning, as much value from the testimony of an expert as the other. It is not then a question as to whether we shall admit expert testimony, but what is the value of expert testimony in each particular instance. This, of course, varies largely in different cases. It is of first importance that the facts upon which an expert's opinion is based be satisfactorily established. It is next necessary that the in

tegrity and skill of the witness be known. Then, where the expert states precise facts in science, as ascertained and settled, or states the necessary and invariable conclusion which results from the facts before him, his opinion is entitled to great weight. Where he gives only the probable inference from the facts stated, his opinion is of less importance. Where the opinion is speculative, theoretical, and states only the belief of the witness, while some other opinion is equally consistent with the facts in the case, it is entitled to but little weight. It is a fact, much to be regretted, that so many of the opinions rendered recently by experts in courts of law should have been of this latter nature.

Who is an Expert.-Here, again, we face amultiplicity of definition and a decided variance of opinion. Many of the definitions that have been attempted are of such a meager nature as to be practically worthless. I have in mind one rendered by a western court in these few words, "An expert is a skillful person," the worthlessness of which is self-evident. In the consideration of the question it is obviously impossible to frame a definition that will be at once concise and clear, and at the same time applicable to every situation that may arise. The rule for the admission of experts as witnesses places the question of qualification, to a great extent, at the discretion of the presiding judge. He may, even if he regard it as necessary, make a preliminary examination of the witness seeking to qualify as an expert. This rule, which at first sight would seem to demand an almost universal knowledge on the part of the court, is fortified by the fact that the witness is subjected, while on the stand, to an examination by counsel that will generally establish or negative his qualifications as an expert. The question as to who is an expert can perhaps be best answered by quoting freely from the case of Jones v. Tucker.9 Mr. Justice Doe in that case says: "When the witness is offered as an expert. three questions necessarily arise: 1. Is the subject concerning which he is to testify, one upon which the opinion of an expert can be received? 2. What are the qualifications necessary to entitle a witness to testify as an expert? 3. Has the witness these qualifications? Experts may still give their opinions upon questions of science, skill or trade, or others of the like kind, or when the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, or when it so far partakes of the nature of a science as to require a

715

study, in order to qualify a man to understand it.10 Upon subjects of general knowedge which are understood by men in general, and which a jury are presumed to be familiar with, witnesses must testify as to facts alone, and the testimony of witnesses as experts merely is not admissible." Experts have been described as "men of science, "12 "persons professionally acquainted with science or practice,''13 conversant with the subject-matter, "14"persons of skill," "possessed of some particular science or skill respecting the matter in question."'16 An expert must have made the subject on which he gives his opinion a matter of particular study, practice or observation and he must have particular and special knowledge upon the subject. The rules determining the subjects upon which experts may testify and the rules prescribing the qualifications of experts, are matters of law; but whether a witness, offered as an expert, has those qualifications, is a question of fact to be decided by the court at the trial. The various disqualifications which render a person incompetent to be sworn and to give testimony, are fixed by law, but whether the disabilities exist in a particular case is a question of fact. And whether a disability is such that a person cannot testify at all or only such that he cannot testify as an expert, the existence of the disability is equally a matter of fact, most conveniently and satisfactorily determined at the trial. That an expert must have special and peculiar knowledge or skill is as definite a rule as that the search for a subscribing witness must be diligent and thorough; and whether a witness has special and peculiar knowledge, is as much a question of fact as the question whether the search for the witness has been diligent and thorough. Many are the definitions and explanations which have been attempted. Bell, in his work on Expert Testimony, says: The legal signification of 'expert' (ex pertus) corresponds strictly with the ordinary acceptation of the term, namely, 'one who has skill, experience or peculiar knowledge on certain subjects of inquiry in science, art, trade and the like. 17 In Best on Evidence (p. 499, Chamberlain's Ed.). this definition is to be found, "on questions of science, skill, trade and the like, persons conversant with the subject-mattercalled by foreign jurists 'experts,' an expression now naturalized among us—are permitted to give their opinions in evidence. This rests on the maxim 'cuilibet in sua arte perito est credendum.' Coke on Littleton, 125a." The application of these rules is of continual occurrence. Medical

men are frequently called upon to explain the cause of death, or the condition of a person's mind; scientific men, to explain natural phenomena; lawyers to explain laws and customs within the province of their profession. It is not necessary that the person offered as an expert should have combined study with practice, or vice versa, in order to be qualified to give testimony as an expert.18 But observation without either study or practice will never be sufficient.19 Nor is it at all necessary that he should at present be engaged in the practice of the art, trade or profession as to which he is called to testify. When the testimony of an expert becomes necessary, the only requirements are that the witness offered as such should be particularly skilled in the science, art, trade or profession involved in the subject upon which he is called to testify. This skill or knowledge may be acquired in any manner whatsoever provided the witness possess the requisite degree of skill, information or knowledge to entitle his opinion to the credence accorded to that of an expert.20 The rule is, or ought to be, perfectly clear. In the first place, the subject should be one requiring the services of an expert. Secondly, the expert should be qualified and particularly informed, either by practice or special study, as to the subject upon which he is to testify-it is no more the province of the practicing physician, with an experience of one case, to state as an expert opinion that the result of a chemical test, to which certain portions of a dead body have been subjected, evidences the presence of a minute quantity of morphia rather than the existence of ptomaines and leukomaines, than it is within the sphere of a chemist to prove that a person is afflicted with nystagmus. And lastly, when rendering his testimony, it is never the privilege of an expert to assume the functions of a jury; a method has grown up, which well-nigh evades this rule-the hypothetical question-which will later be referred to at more length.

When is Expert Testimony Admissible? The rule as to this may be stated as follows: When the controversy, from its nature, necessarily involves questions of a scientific nature which, without the opinions of witnesses, skilled in the science, profession, trade or art in question, can not be presented to a jury in such form as to enable them to decide the question involved with the requisite degree of knowledge or judgment, the testimony of experts may be introduced.21 The admissibility of the testimony of the expert may be said to

though the method of receiving it may vary somewhat. In Scotland the report of the medical man engaged in a case forms a part of the preliminary investigation, or precognition as it is called, before the Procurator Fiscal. In England, as in the United States, the testimony is all received at the trial. On the Continent, and more especially in France and Germany, experts, when medical men, are chosen from a special class and act singly or in conjunction with each other. In these cases instead of being subjected to a viva voce examination at the precognition or the trial, the expert is presented at the preliminary investigation, with a series of written questions together with the written depositions of the witnesses and of the accused, and from the study of these he is required to render in writing his opinion in the case, adding at length the reason upon which such opinion is based. This system, as I have before stated, applied more particularly to the medical expert and is not without its advantages. Were it possible to secure a staff of recognized experts in each State, it would greatly enhance the value of expert testimony. As it stands to-day, in this country, the testimony of the expert, the "paid witness" is looked upon with pronounced disfavor by the public, while the general sentiment of the legal profession may be gathered from the following excerpt from Mr. Wharton's work on Evidence (vol. 1, par. 454): "Few specialties are so small as not to be torn by factions; and often, the smaller the specialty, the more inflaming and bitter and distorting are the animosities by which these factions are possessed. Peculiarly is this the case in matters phsycological, in which there is no hypothesis so monstrous that an expert cannot be found to swear to it on the stand and defend it with vehemence when off the stand. 'Nihil tam absurde dice potest, quod non dicatur abalioquo philosophorum!" To return, however, to this question as to when expert testimony is admissible. There is but little to be added, by way of explanation, to the definition before given. It is a fixed and certain rule that an expert may not give an opinion as to common every day facts that lie within the knowledge of every man.22 Nor may he give an opinion of law.

Scientific Testimony in the Examination of Written Documents.-This field is one in which the testimony of the expert has proved of particular value. In questions as to a testator's signature, in the discoveries of the authors of anonymous letters, in cases of forgeries, in every case where