Ponente: Elliott, J.
FACTS:
·
William Brunker was the owner of a two-storey
building in the town of Farmersburg, Indiana. He used the ground floor as a
storeroom and warehouse. The second floor was leased by him to a lodge (i.e.,
"group") of Old Fellows. The latter used the second floor for
meetings, and would usually get in and out of the building via a walk (i.e.,
path ) along the side of the building.
·
On the afternoon of April 20, 1889, a servant
(i.e., employee) of Brunker placed a barrel on the said walk. The barrel was
left there during the night.
·
Robert Cummins, a member of the lodge of Old
Fellows, was coming out of the second floor when his foot struck against the
barrel, causing him to crash on the ground and sustain injuries.
·
Cummins filed an action for negligence against
his landlord Brunker, claiming that the latter failed to discharge his duty of
refraining from doing anything that made the use of the premises unsafe.
Brunker's defense was that he was not negligent because the barrel was placed
in such a way that there was still sufficient space between where the barrel
was and the wall of the building for a man to walk safely.
·
During the trial court proceedings, Cummins
sat as a witness. Part of the cross examination went thus:
BRUNKER'S
COUNSEL: You may state, Mr. Cummins,
whether there was sufficient room between where the barrel was and the wall for
a man to walk with safety.
CUMMINS: Yes, I think so; as much room as we commonly
have; as much room as between the well house and the brick wall.
·
In effect, Cummins made a statement
prejudicial to his own cause.
·
Cummins's counsel objected to said questioning
on the ground that his client's statement was merely an expression of opinion
which the court cannot countenance. The trial court judge overruled said
objection and allowed Cummins's answer to be considered by the jury. On account
of the "opinion" made by Cummins during the trial, the jury dismissed
his complaint and held for Brunker.
·
Hence, the instant appeal.
RULING:
Whether
the disputed statement made by Cummins constituted an "opinion". –
YES.
Whether
the trial court erred in admitting the "opinion" made by Cummins. –
YES.
·
The principal issue in this case is whether
Brunker is negligent in placing the barrel upon the path leading up to the
second floor. This is a question in which the elements of law and fact are
blended. The law comes from the court in the form of instruction in most cases,
and the questions of fact are determined by the jury from the evidence.
·
As applied in this case, a material and
controlling question of fact is whether the distance between the barrel and the
wall of Brunker's building was such as to permit the safe use of the path by a
person exercising ordinary care. It is the jury, not Cummins or any witness for
that matter, which should decide whether the distance of the barrel from the
wall, the width of the walk, the character of the place, and the like, were all
proper matters of evidence and from such evidence express a judgment.
·
By allowing Brunker's counsel to elicit an
opinion from Cummins, and thereafter allow such statement to be made as a basis
for the jury's ruling, the trial court violated the rule that opinions, in
general, are incompetent. For verily, asking "whether or not there was
room for a man to walk with safety" could only be a matter of opinion.
·
The only exception to this rule is when
necessity calls for the introduction of an opinion by a non-expert witness.
Clearly, this exception does not avail in the instant case, inasmuch as the
facts as to the unobstructed space and other pertinent facts could have been
easily stated to the jury without resorting to opinion evidence.