Opinion
No. 22291
Decided April 1, 1931.
Evidence — Declaration of eyewitness, not party, that plaintiff caused accident — Expression of opinion upon ultimate issue for jury — Declaration incompetent as original or impeaching evidence — Cross-examination of witness, seeking opinion upon blame for accident — Relates to collateral matter, not subject to cross-examination.
1. In a suit against a defendant for personal injuries to the plaintiff arising out of an automobile collision the declaration of an eye witness, who was not a party to the suit, that the accident was caused, not by the defendant's fault but by the fault of the plaintiff, is but the expression of an opinion upon an ultimate issue to be determined by the jury.
2. Such declaration made by the eye witness is not competent, either as original or impeaching evidence; and, because of its prejudicial character, its admission for the purpose of impeaching the witness constitutes error.
3. The cross-examination of a witness, seeking his opinion as to the blame of the accident, relates to a collateral matter which is not subject to cross-examination. The witness's opinion, if obtained, could not be contradicted.
ERROR to the Court of Appeals of Summit county.
This action was brought in the court of common pleas of Summit county against Fred J. Klein by William J. Cottom, as the next friend of his child Eleanore, aged six, who suffered personal injuries by being struck by Klein's automobile, while crossing Thornton street in the city of Akron. The defendant won a favorable verdict and judgment, which was affirmed by the Court of Appeals.
The petition averred that Klein was driving at an excessive and unlawful rate of speed, and that he otherwise failed to use ordinary care towards the child under the circumstances therein alleged. Negligence was denied by the defendant in the answer, and contributory negligence of the child was pleaded, the answer specifically alleging that the infant, appearing without warning, ran into the path of defendant's automobile and was struck despite the use of ordinary care on his part to avoid the collision. About 10:30 a. m., on Sunday, October 2, 1927, Klein, driving a Franklin car easterly on Thornton street, was proceeding at a speed which he testified was about fifteen miles per hour. At the same time the father, Cottom, and three children, aged four, six, and eight, respectively, were crossing Thornton street from north to south, Cottom holding the hands of two of the children, one on each side, while the plaintiff Eleanore, aged six, clasped the hand of her little brother, aged four. Observing Klein's approaching automobile, Cottom and the three children stopped near the center of Thornton street to permit it to pass. The child Eleanore, leaving her small brother's side, pursued her way across Thornton street, first in a walk, then in a run after she saw the approaching vehicle. According to several eyewitnesses, Klein clamped on his brakes to avoid the collision, but was proceeding at such a rate of speed that it caused his car to skid thirty to fifty feet, striking the child as she reached the south curb of Thornton street, and dragging her several feet under the car, which continued its skidding over the south curb. Klein and the child's father then took the child in Klein's car to a children's hospital.
Cottom, the father of the plaintiff, was called as a witness in her behalf. In the course of his examination in chief, describing the manner in which he and his children were crossing Thornton street, he said: "We started across, and I looked and there was a car coming with a terrific speed. I stopped. I had one child in each hand but I couldn't stop the other one, but it went across." On cross examination he testified that he had hold of two of the babies, one on each side of him, and that Eleanore, the injured child, had hold of the hand of her four year old brother.
"Q. She left loose of her brother's hand and went on ahead across the street? A. Yes.
"Q. You were about the middle of the street when she left you and the other children? A. Practically so, yes."
It appears that Mrs. Klein, the wife of the defendant, was not present at the time of the accident, but appeared later at the hospital. Some ten or fifteen minutes after her arrival at the hospital a conversation occurred between Cottom, Klein, and his wife, and the principal claims of error arise out of the admission in evidence of the declaration made by Cottom to them in that conversation. On cross-examination he was asked whether he remembered saying to Klein and his wife that "there had been an accident, * * * it was not your husband's fault, it was the child's fault, she jerked away from me, and ran in front of the car." Counsel for the plaintiff objected to the question, but the court permitted the question to be propounded for the purpose of impeaching the witness. The witness denied making such declaration. On the defense both Klein and his wife testified that Cottom had admitted that it was not Klein's fault, but was the fault of the child jerking away from her father and running in front of the car. This testimony was admitted over the objection and exception of plaintiff's counsel. The same character of testimony was also admitted as substantive testimony, and not by way of impeachment. Klein as a witness for the defense testified that the father shortly after the accident stated to him, "It was mostly his fault because the child slipped out of his hand, jumped right out of his hand."
Messrs. Roetzel, Hunsicker Olds, for plaintiff in error.
Messrs. Musser, Kimber Huffman, for defendant in error.
The trial court admitted the father's declarations solely upon the ground that they were competent for the purpose of impeaching the testimony of the father.
Cottom was not the real party in interest; he was acting in the capacity of next friend only. Had Cottom been the plaintiff in the suit, seeking recovery of damages, declarations made by him as such party that the cause of the collision was his own fault, might be admissible as a declaration of interest as against himself. Were the declarations of fault admissible against the child? Cottom had not denied that the child had broken away from him. That fact was admitted and not subject to impeachment, so the sole purpose of this testimony was to impeach the credibility of the father by showing that he had stated that the collision was not the defendant's fault, but the fault of the child.
While the court stated that the declarations were admitted for the purpose of impeachment, and "not to establish any liability or determination of whose fault the accident was," the undoubted tendency of the admitted testimony was to exculpate the defendant from blame and to place the blame upon the child; and to do this by a mere expression of opinion. The ultimate question to be decided was, Who was negligent or at fault? That was a question of fact to be determined by the jury, and should be determined, not by the conclusion or by the opinion of the witness, but by testimony detailing facts and circumstances from which the jury could determine the issue of negligence. The textbooks amply support the rule that the opinions of witnesses as to who may or may not be negligent are incompetent for the purpose of establishing that issue; nor are we without authority therefor in our own state. Fowler v. Delaplain, 79 Ohio St. 279, 87 N.E. 260, 21 L.R.A. (N.S.), 100; Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158, 64 A. L. R., 981. The following statement of fact and law appears in the opinion of the latter case, at page 91 of 121 Ohio State, 167 N.E. 158, 161: "In the course of the cross-examination, counsel for the plaintiff asked the witness whether in a conversation with counsel the witness had not previously made certain statements to him which were in effect that the defendant was at fault. A mere conclusion or opinion of the witness was sought, which was not competent either upon direct or cross-examination." The third proposition of the syllabus is as follows: "A witness who testifies as to facts cannot be discredited by evidence of the expression of an opinion relative to the merits of the case."
There is a field where opinion evidence, expert in character, may be available; but in that field a witness must qualify as an expert, having a special and peculiar knowledge of the subject, before his opinion may be elicited. The opinion of Cottom, touching the blame for the collision, does not fall within the field of expert testimony. The witness was no better qualified to express an opinion upon that issue, which was the ultimate one to be determined, than any other nonexpert witness. The facts and circumstances surrounding the accident were detailed by Cottom on the trial; and it became the duty of the jury to arrive at their own opinions relative to the merits of the case. The first proposition of the syllabus in the Fowler case, supra, is applicable: "A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent."
Saunders v. City Suburban Rd. Co., 99 Tenn. 130, 41 S.W. 1031, is exactly in point, and very similar to the case here. There the question under discussion arose in the manner following: An action had been brought against the defendant for personal injuries received by the plaintiff from a collision with the defendant's car. In the course of the trial the daughter of the plaintiff was asked on cross-examination if she had not, a few minutes after the accident, told one Hodge that the accident was due to her "father's fault." Objection was made and overruled by the court on the ground that it was competent as affecting her credibility as a witness. The daughter answered that she made no such statement. Hodge was then called as a witness for the defendant, contradicted the daughter's testimony, and said that she had stated "it was her father's fault, if I remember right." The Tennessee court held that this evidence was inadmissible either as original evidence or as a basis for impeaching the daughter as a witness, upon her denial that she had made such statement; that the matter was collateral, and that the witness's answer was conclusive upon the subject.
The third proposition of the syllabus in Holmes v. Anderson, 18 Barb. (N.Y.), 420, reads: "The statement of the witness, upon which he can be impeached, within that rule, must not only relate to the issue, but it must be a matter of fact, and not merely a former opinion of the witness in relation to the matter in issue, inconsistent with a different opinion which the facts testified to by him tend to establish."
Certainly it cannot be denied that the defendant, in proving his case, would have been precluded from making Cottom his witness and obtaining his opinion as to the cause of the accident. Since he could not have introduced such opinion as original or substantive testimony, he could not do so by way of indirection under the guise of impeaching the witness.
We think that the rule announced in the foregoing authorities, supra, holding such testimony inadmissible, either as substantive or as impeaching evidence, is supported by the case of Krause v. Morgan, 53 Ohio St. 26, 40 N.E. 886, holding testimony of this character to be collateral. There it appears, at page 31 of 53 Ohio State, 40 N.E. 886, 887, that in the course of the trial the mine boss of the defendant was asked on cross-examination whether he had not stated to one Ely: "The company is blaming me for the accident; I don't see why I am to blame; I requested a safety lamp from the company several weeks back, and it didn't come, and I consider my life worth as much as any other man's." The witness denied making the declaration. Plaintiff offered to prove by Ely that the declaration was made to him, but the court refused to admit Ely's testimony. The Circuit Court held that the exclusion of Ely's testimony was error; but this court, in reversing the appellate court and affirming the trial court, held that its exclusion by the trial court was not error, for the reason that, if such statement were made, it could not be taken as an admission against the defendants, his employers, since the mine boss was not shown to have authority to make the statement; and it also held that the matter relating to the statement was collateral.
We therefore hold that, since the claimed declarations were mere expressions of opinion, and were not made by a party to the suit, the ruling of the trial court in admitting them was erroneous. The Court of Appeals erred in affirming the judgment of the common pleas court. The judgments of the lower courts will be reversed, and the cause remanded to the trial court for further proceedings according to law.
Judgment reversed and cause remanded.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.