It is difficult at times to distinguish clearly whether a question calls for an expression of opinion or for a statement of fact from the witness. The form of the question or of the answer is not always a reliable test. Thus, a witness may be asked if he has any doubts concerning the facts of a transaction to which he has testified, this question not calling for an expression of opinion, but merely seeking to ascertain the certainty of his knowledge. So, where a witness is unwilling

or unable to swear positively what any article was which he has examined or tested - that is, if he cannot readily identify it or classify it from a physical perception of fts qualities,— he may be asked what he thinks it was. If the witness, through excess of caution, qualifies his replies by expressions such as "it appears to me," "I think," "I believe," or "should judge," his testimony, though perhaps weakened thereby, is not rendered incompetent. So far as his evidence contains statements of relevant facts, it is admissible though thus qualified. On the other hand, a witness' statement that he does not think a fact is true is not an opinion, for witnesses are not always required to state facts with positiveness." Testimony showing the ownership or size of the subject of litigation, or the time which elapsed between two events, or the opinion of the witness that a writing read by him is true,” is not objectionable as an expression of opinion. But the opin

1 State v. Duncan (Mo., 1893), 22 S. W. Rep. 699; King v. Railroad Co., 72 Mo. 607.

2 Com. v. Moinehan, 140 Mass. 463. * People v. Fanshawe, 19 N. Y. S. 865.

+ Abb. Brief on Facts, § 192, citing Guiterman v. Steamship Co., 9 Daly (N. Y.), 119; Bradley v. Second Ave. R. R. Co., 8 id. 289; Callahan v. N. Y., Lake Erie & W. R. R., 102 N. Y. 194; People v. Rolfe, 61 Cal. 540; State v. Babb, 76 Mo. 501; Rich v. Jones, 9 Cush. (Mass.) 326; Prior v. Diggs (Cal., 1893), 31 Pac. Rep. 155. 5 Prior v. Diggs (Cal., 1893), 31 Pac. Rep. 155.

365.

Slemer v. Tranum, 13 S. Rep.

6

7 Oslin v. Jerome, 93 Mich. 186; Bass Fur. Co. v. Glasscock, 82 Ala. 452: Romack v. Hobbs (Ind., 1893), 32 N. E. Rep. 307. "Duration, dimension, size, velocity, etc., are often to be proved only by the opinion of witnesses, depending as they do on minute circumstances which cannot fully be detailed by witnesses." State v. Folwell, 14 Kan. 205.

8 Campbell v. State, 23 Ala. 41; State v. Casey, 44 La. Ann. 969.

9 Furton v. N. Y. Recorder, 22 N. Y. S. 766; 3 Misc. Rep. 314; Liscomb v. Agate, 22 N. Y. S. 126; 67 Hun, 688.

ion of the witness who is not an expert as to the meaning of a sign, as the shaking of the head,' or of an outcry, or generally as to the probable cause or effect of a certain relevant act, or as to the probable amount of time required for its performance, whether a witness could have heard a conversation, or a certain signal if it had been given," whether an accident was more likely to occur in one place than in another, or whether a certain act was prudent, is inadmissible. Though non-expert witnesses are usually confined to testifying to facts, there are some cases where, from necessity, their opinions are admissible upon matters of common knowledge. If the facts to which the witness is called to testify are so numerous and of so peculiar a nature that they are incapable of being specifically described so as to bring out clearly their proper force and significance before the jury, the witness may state his opinion as a short-hand characterization of the facts.10 So where a witness had adequate means

1 Rollwagen v. Rollwagen, 3 Hun, 121; 63 N. Y. 504.

2 Mesner v. People, 45 N. Y. 1.

3 Gardner v. State (Ga., 1893), 17 S. E. Rep. 86; Friedenwald v. Baltimore, 74 Md. 116; 21 Atl. Rep. 555; Kendrick v. Central R. R. Co., 89 Ga. 782; Middlebrook v. Zapp, 79 Tex. 321; Ireland v. Cincinnati, etc. Co. (Mich., 1890), 44 N. W. Rep. 426; People v. Rector, 19 Wend. 569; Kansas, etc. Co. v. Scott, 1 Tex. Civ. App. 1.

Dowdy v. Georgia R. R. Co., 88 Ga. 726; Parrott v. Swaim, 29 Ill. App. 266.

5 People v. Holfelder, 5 N. Y. Crim. R. 179.

6 Eskridge v. Railroad Co., 89 Ky. 367; 12 S. W. Rep. 580; East Tenn. etc. Co. v. Watson, 90 Ala. 41; 7 S. Rep. 813.

7 Toledo S. & S. etc. Co. v. Jackson (Ill., 1893), 32 N. W. Rep. 793; Ivory v. Town of Deer Park, 116 N. Y. 476; Betts v. Gloversville, 8 N. Y. S. 795.

8 Murtaugh v. N. Y. Cent. & H. R. R. Co., 49 Hun, 456.

9 Elliott v. Van Buren, 33 Mich. 49; People v. Monteith, 73 Cal. 7; Davis v. State, 78 Ind. 15; Blake v. People, 73 N. Y. 586; Yahn v. Ottumwa, 22 Am. Law Reg. 644; Knoll v. State, 55 Wis. 249; Baltimore v. Lib. Turnp. Co., 66 Md. 419; 7 Atl. Rep. 805; Whittier v. Franklyn, 46 N. H. 23.

10 Welch v. Miller, 32 Ill. App. 110; State v. Miller, 53 Iowa, 84; Livingston v. Metro. R. R. Co., 18 N. Y. S. 203; Pike v. State, 49 N. H. 399; Adams v. People, 63 N. Y. 621; Carter v. Carter, 37 Ill. App. 219; 28 N. E. Rep. 948; Com. v. Cunningham, 104 Mass. 545; Fulcher v. State, 28 Tex. App. 465; East Tenn. R. Co. v. Watson, 90 Ala. 41; 7 S. Rep. 813; Atchison R. Co. v. Miller, 18 Pac. Rep. 486; 39 Kan. 419; B. & O. R. R. Co. v. Rambo, 59 Fed. Rep. 75; Indianapolis v. Huffer, 30 Ind. 235; Chicago, etc. Co. v. George, 19 Ill. 510; Irish v. Smith, 8 S. & R. 573;

of observing a transaction, but where it is impossible for him so to reproduce it as to enable any one hearing his description to form an intelligent conclusion from what he is able to relate, the witness may, after stating the facts, be allowed to state his own opinion or the conclusion he has formed from the facts within his knowledge. Thus, a witness may testify to his understanding of a conversation; that, in his opinion, a certain noise which was made by running water frightened a horse; that a horse was gentle, or appeared frightened 5. or tired; that a person's manner in answering questions was short; that a man was at a certain date intoxicated or was a person of intemperate habits; that a person looked like a white woman; 10 that a man was destitute," or that he was sober.12 So any witness may testify in court to the apparent age 13 or to the identity of a person or thing seen by him out of court.14

State v. Babb, 76 Mo. 501; Alexander v. Jonquil, 71 Ill. 366; Porter v. Pequonnoc, 17 Conn. 249.

1 Taylor v. B. & O. R. Co., 10 S. E. Rep. 29; 33 W. Va. 39; Cavendish v. Troy, 41 Vt. 99. "A variety of circumstances that could only be perceived, but not detailed, would constitute the aggregate from which the opinion might be formed. The person who had witnessed the transaction could alone form any idea of the subject that could be relied on with safety." Stewart v. State, 19 Ohio, 302.

2 Garvin v. Gates, 73 Wis. 513; 41 N. W. Rep. 621; Printup v. Mitchell, 17 Ga. 558. But he cannot testify to the legal effect of what was said. Ives v. Hamlen, 59 Mass. 534.

"Yahn v. Ottumwa, 60 Iowa, 429; Whittier v. Franklin, 46 N. H. 23.

4 State v. Avery, 44 N. H. 392; Sydenham v. Beckwith, 43 Conn. 9. 5 Com. v. Sturtivant, 117 Mass. 122.

9

8 McKillop v. Duluth St. Ry. Co. (Minn., 1893), 55 N. W. Rep. 739; Cole v. Bean, 1 Ariz. 377; People v. Monteith, 73 Cal. 7; People v. Eastwood, 14 N. Y. 562; Bradley v. Railroad Co., 8 Daly (N. Y.), 289; McCarty v. Wells, 51 Hun, 171; Hampson v. Taylor, 15 R. I. 83; State v. Pierce, 65 Iowa, 85; People v. O'Neil, 112 N. Y. 355.

9 Gallagher v. People, 120 Ill. 179; United Breth. M. Aid Ins. Co. v. O'Hara, 120 Pa. St. 256; 13 Atl. Rep. 932; Gahagan v. Railroad Co., 1 Allen, 187; Smith v. State, 55 Ala. 1; Tatum v. State, 63 id. 150.

10 Hopkins v. Bowers, 111 N. C. 175; Moore v. State, 7 Tex. App. 608. 11 Antanger v. Davis, 32 Ala. 703. 12 People v. Packenham, 115 N. Y. 200.

13 Jones v. State (Tex., 1893), 22 W. Rep. 349; Carr v. State, 24 Tex. App. 562; State v. Douglas, 48 Mo. App. 39.

14 Com. v. Sturtivant, 117 Mass. State v. Ward, 17 Atl. Rep. 483 112; State v. Horr (W. Va., 1893), 17

(Vt., 1889).

7 Carroll v. State, 23 Ala. 28.

S. E. Rep. 794; Brotherton v. People, 75 N. Y. 159; State v. Dickson,

Again, a non-expert witness may testify to the disposition of a person, i. e., that he is unreliable; that on certain occasions he manifested hatred or anger, or affection, towards himself or some other person, or looked wild and excited, or sad, or was happy and in good spirits. So, also, it is allowable for a non-expert to testify that in his opinion a culvert 7 or a highway was or was not in good repair; that a trespass was committed in an insulting manner; that a blow, which caused a physical injury, came from a certain direction; 10 that the weather was very cold;" that ill-feeling existed between certain persons; 12 that a train was running at a specific rate of speed, and that liquor which he had examined was intoxicating.14

13

8

§ 187. Expert evidence, when admissible.- Where the subject of investigation is such that persons who have not made it a special study, or who have had no peculiar training or experience in it, are incompetent to form accurate conclusions or opinions regarding it, experts may be called to state their opinions to the jury. Where the relation of facts to each other, their connection with each other, and their results or the conclusions which may be drawn from them, can be de termined without any prior special experience, study or skill, the opinions of experts are inadmissible. So expert evidence will not be received to show that a road is necessary; 15 that

78 Mo. 438; People v. Rolfe, 61 Cal. 540; State v. Babb, 76 Mo. 501.

1 Mills v. Winter, 94 Ind. 329.

2 State v. Edwards (N. C., 1893), 17 S. E. Rep. 521; State v. Shelton, 64 Iowa, 3:3.

10 Hopt v. Utah, 120 U. S. 430.

11 Curtis v. Chicago, etc. Co., 18
Wis. 312.

12 Polk v. State, 62 Ala. 237.
13 Pence v. Chicago, R. I. & P. Ry.
Co. (Iowa, 1890), 44 N. W. Rep. 686;

3 McKee v. Nelson, 4 Cow. (N. Y.) Com. v. Malone, 114 Mass. 295; State 355. Folwell, 14 Kan. 105. So it may

V.

4 Trav. Ins. Co. v. Sheppard, 85 be shown by one witness that a train Ga. 751.

5 Culver v. Dwight, 6 Gray, 444. 6 State v. Baldwin, 36 Kan. 1. 7 Lund v. Lynsborough, 9 Cush. (Mass.) 36.

8 Clinton v. Howard, 42 Conn. 294; Balt. & Lib. Turnp. Co. v. Cassell, 66 Md. 419; Alexander v. Mt. Sterling, 71 Ill. 366.

was running rapidly at a place not
too remote from the point in issue,
and by another witness that its speed
was not subsequently reduced.
Louisville, New Albany, etc. Co. v.
Jones, 108 Ind. 55.

14 Com. v. Donlican, 114 Mass. 257;
State v. Miller, 53 Iowa, 84.

15 Burwell v. Speed, 104 N. C. 118;

9 Raisler v. Springer, 38 Ala. 703. 10 S. E. Rep. 152.

the condition of machinery might necessitate an examination;' how much bark or wood will shrink;2 or to explain the injury which has been done to property by smoke, noise and stench caused by the running of a railroad, as such matters are usually within common experience.

The expert witness need not know personally anything of the facts of the particular case, though perhaps his evidence would be of higher value if he could testify of his own knowledge as well as state his opinion upon facts in a hypothetical question which are assumed to be proved. It must appear, however, from his previous experience and study, or from his business or professional avocation, that he is qualified to answer the question more accurately than is a person who may not have been called upon to study the subject or to obtain or exercise any skill in it.*

§ 188. Competency and examination of experts.- Whether a witness is qualified to testify as an expert is always a question for the court," and his competency and title to act as an expert must be shown before his opinion is admissible.

1 Goodsell v. Taylor, 41 Minn. 207. 2 Brown v. Doubleday, 61 Vt. 523; 7 Atl. Rep. 135.

3 Thompson v. Penn. R. Co., 15 Atl. Rep. 833; 51 N. J. L. 42.

4 Overby v. C. & O. R. R. Co., 37 W. Va. 524; Lawrence v. Myrieman Marble Co., 1 Misc. Rep. 105; St. Louis, I. M. & S. Co. v. Lyman (Ark., 1893), 22 S. W. Rep. 170; Alabama Coal Co. v. Pitts (Ala., 1893), 13 S. Rep. 35; Muldowney v. Ill. Cent. R. Co., 36 Iowa, 472; American En. Tile Co. v. Reich, 12 N. Y. S. 927; Litton v. Wright, 1 Ind. App. 92; 27 N. E. Rep. 329; In re Thompson, 58 Hun, 608; Perry v. Jensen, 21 Atl. Rep. 866; 28 W. N. C. 126; People v. McQuaid, 85 Mich. 123; 48 N. W. Rep. 161; Rochester, etc. Co. v. Budlong, 10 How. Pr. (N. Y.) 289; Kennedy v. People, 39 N. Y. 245.

McEwen v. Biglow, 40 Mich. 215;

It is

Nelson v. M. Ins. Co., 71 N. Y. 453; Broquet v. Tripp, 36 Kan. 700; Wright v. Williams, 47 Vt. 222; Dole v. Johnson, 50 N. Y. 452; Flynt v. Bodenhamer, 80 N. C. 205; Santa Clara v. Enright, 95 Cal. 105; Perkins v. Stickney, 132 Mass. 217; Gates v. Chicago, etc. Co., 44 Mo. App. 488; People v. Levy, 71 Cal. 618; Chateaugay O. & I. Co. v. Blake, 144 U. S. 476. See ante, 11, 13.

6 People v. Millard, 5 Crim. L. Mag. 588; Russell v. Crittenden, 53 Conn. 564; Half v. Curtis, 68 Tex. 640; 5 S. W. Rep. 541; Stennett v. Penn. Ins. Co., 68 Iowa, 674; Ft. Wayne v. Coombs, 107 Ind. 75; Forbes v. Howard, 4 R. I. 364; Pennsylvania Co. v. Swan, 37 Ill. App. 83; McCormick M. Co. v. Burandt, 37 id. 588. Cf. Taft v. Com. (Mass., 1893), 33 N. E. Rep. 1046.