Opinion of the Court.-Dunbar, J. [31 Wash. "This evidence was improper, not only upon the ground that the question called for the mere opinion of the witness, upon the assumption that appellee would put in the work when in nowise obligated to do so, but upon the further ground that it was an opinion covering the very question which was to be settled by the jury, and so conclusive of it as to leave to the jury no other duty but that of recording the finding of appellant's witnesses. It amounts to nothing more nor less than permitting the witnesses to usurp the province of the jury." In Evansville, etc., R. R. Co. v. Fitzpatrick, 10 Ind. 120, it was said: "But the opinions of witnesses, as to the amount of damage done by the construction or operation of the road, are not competent evidence. They may state the particular injuries, and the jury are to form their own conclusion of the amount, from the facts proved. In the case at bar, the interrogatories, in effect, call upon the witness to estimate the damages, and the answers plainly show a mere opinion as to the amount. Plaintiffs' objections were well taken, and should have been sustained." In Wichita & W. R. R. Co. v. Kuhn, 38 Kan. 675 (17 Pac. 322), the following question was asked: "How much less, in your opinion, is this farm worth after the railroad company had established their track through it, irrespective of any benefits from any improvements proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences, and damage, present and prospective, which may be reasonably expected or shown to exist from the maintaining of said railroad track, to be continued permanently. Ans.: About $2,100." The supreme court, in commenting upon this testimony, said: "The court below certainly should not have permitted this evidence to be introduced. It involved substantially everything that the jury were called upon to determine; Apr. 1903.] Opinion of the Court.-Dunbar, J. and left nothing for the jury to decide. It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the damages were, and the amount which the plaintiff should recover in the action.” "The opinions of witnesses, as to damage or loss, are not competent evidence, even in cases where the damages claimed are a proper subject of recovery. The facts, and all the facts going to show what the damages would be, should be given in evidence; and the jury must then draw their conclusion from the testimony of the witnesses as to the amount of the damage." Giles v. O'Toole, 4 Barb. 261. In Norman v. Wells, 17 Wend. 136, the court, in speaking on this proposition, says: "The single opinion of no man can be followed. The best would be utterly delusive. Even where a witness is able to speak to all the facts of the particular case, his opinions are not to be received. I know that in questions of insanity, some courts allow witnesses to throw in their opinions from what they have seen and heard. But I always found that such cases were much better tried, where opinions were kept entirely out of view; and I have generally excluded them, except where they came from professional men. The amount of indemnity, where it is not capable of being reached by computation, is always a question for the jury. If there be any rule without exception, it is this; and I have been unable to find any instance where the opinion of witnesses has been received. Bacon and Symonds, who were sworn in this case, might have possessed some knowledge in respect to the case peculiar to themselves. Every witness is supposed to have such knowledge; but he does not therefore become an expert, and entitled to speak on the general point of damages. If one may speak, another may. It is no reason for receiving such evidence that the defendant may cross-examine. That he might do of course; and the trial might thus be Opinion of the Court.-Dunbar, J. [31 Wash. protracted to an amazing length in taking opinions from the neighborhood." In Cook v. Brockway, 21 Barb. 331, in the discussion of this proposition, it was said: . "The witnesses should have stated the facts, and the jury should have exercised their judgment, and pronounced the damages. The principle that witnesses shall not invade the province of the jury is an important one, and there is great danger in departing from it. If the opinions of witnesses are to be substituted for the judgment of the jury, upon the evidence, parties will be able, by selecting their witnesses, and by talking and reasoning with them, etc., to control the amount of the verdict. Matters of opinion upon questions of damages are very uncertain; and whether the witness is honest in the opinion he gives is a matter that can rarely be decided. He may be corrupt and yet beyond the reach of punishment. If he swears to facts corruptly he may be punished; and generally the party against whom he testifies will have it in his power to give evidence upon the question, and protect himself upon the trial. But without pursuing the subject, the rule is well settled, and it should be adhered to in its true spirit." To the same effect are: Harger v. Edmonds, 4 Barb. 256; Wilcox v. Leake, 11 La. An. 178; Fish v. Dodge, 4 Denio, 311 (47 Am. Dec. 254); Atlantic & G. W. R. R. Co. v. Campbell, 4 Ohio St. 583 (64 Am. Dec. 607); Shepherd v. Willis, 19 Ohio, 142; Morehouse v. Mathews, 2 Comst. 514; Elwood Planing-Mill Co. v. Harting, 21 Ind. App. 408 (52 N. E. 621); Bonner v. Copley, 15 La. An. 504; Bissell v. Wert, 35 Ind. 54;Cleveland & P. R. Co. v. Ball, 5 Ohio St. 568; Abbott, Trial Evidence, p. 349, § 85; Dalzell v. Davenport, 12 Iowa, 437; Tingley Bros. v. Providence, 8 R. I. 493; and many other cases, too numerous to mention, some of which are cited in the appellant's brief. In fact, the uniform authority is to the effect that such testimony is inadmissible. R. Apr. 1903.] Opinion of the Court.-Dunbar, J. Respondent, in defense of the admission of this testimony, cites but few cases, two of which are from this court. In Sears v. Seattle Consolidated Street Ry. Co., 6 Wash. 227 (33 Pac. 389, 1081), where the question asked the witness was, "What was there, if anything, to prevent him [the motorman] stopping the cars and applying the brakes a long time before he did?" the answer was, "He was running at too high speed to stop it at that distance." This testimony simply went to the cause of the injury,. and not in any way to the value of the resulting damages. In Sutton v. Snohomish, 11 Wash. 24 (39 Pac. 273, 48 Am. St. Rep. 847), the witness gave his opinion as to whether the respondent was badly hurt by the fall, and his testimony was sustained by this court. It is true this was an expression of opinion as to the character or degree: of the injury, just as was the testimony of the respondent. in the case at bar that the injury inflicted gave him great pain. But in the case at bar, in addition to the statement of the injury respondent is permitted to measure the damages resulting from the injury-the very question at issue in the case and which was not involved in the case of Sutton v. Snohomish. We have examined the other cases cited by the respondent, but none of them sustain the testimony introduced in this case to which objection is made. This recalls the contention of the respondent that the question of the admissibility of this testimony is not prop-. erly raised by the appellant, for the reason that the question first asked the witness in regard to the amount of damages which he had sustained was not intelligently answered, and that subsequent questions of the same kind were not objected to. An examination of the record shows that when the witness was asked to state his opinion in regard to the value of his damages, the objection was as follows: 40-31 WASH. Opinion of the Court.-Dunbar, J. [31 Wash. "We object to the question for the reason that it is incompetent, irrelevant and immaterial, and is not the proper manner to prove damages for the reason that it invades the province of the jury, and it is not proper testimony as the witness should only be permitted to testify to facts from which the jury are to determine the damages." The court overruled the objection, and an exception was taken. The answer was: "Well, I would not have been hit for anything." It is true that, to the subsequent questions in relation to the damage of the plaintiff in dollars and cents, no objection was made by the defendant, but he had already stated his objections, those objections had been overruled and an exception taken; and no good purpose would have been subserved in retarding the progress of the suit by constantly objecting and preserving exceptions to the identical character of questions that had already been admitted by the court over his objections. The objection to this character of testimony was made, exception was taken to its admission over the objection, and a motion for a new trial was made upon the ground of errors of law occurring at the trial, to which exceptions were taken. We think that the error is properly presented to this court. This view of the question of the inadmissibility of this testimony renders unnecessary the discussion of the other errors assigned. The judgment will be reversed, and a new trial granted. cur. FULLERTON, C. J., and MOUNT and ANDERS, JJ., con |