admitted that photographs taken from one point of view to determine matters of size, relative proportions, grade, etc., might be very misleading, as very different results can be obtained by tilting the photographic apparatus (camera), or by being too near the object, resulting in distortions; but when a set of photographic views are made of an object from different points of view and at varying distances, it is a very difficult matter to make a misrepresentation of the object and its attendant conditions. The following examples serve to show their admissibility and value: They have been admitted "to show damage to premises injured by water," or by a change of grade of a street, to show wrecks,' and of broken parts of fallen structures, to show the obstruction to drainage of a turnpike by the erection of a bridge or causeway, to show a defective sidewalk. Photographic views of streets, buildings, railroad tracks, bridges, etc., have been admitted." Photographs may be received of deeds and descriptions taken from public records which could not be withdrawn, such as to show boundaries,' and to identify and describe premises in dispute, to identify persons,' a lot of jewelry," and to show the severity of wounds due to an assault; and the fact that the expression of the injured person's face was such as would tend to prejudice the jury is not sufficient to show error in allowing it to be used, the photograph not being included in the record." They have been admitted to identify documents, and in place of the original if the original document itself cannot be had," and to show field notes of a survey." Photographic copies on a large scale have been admitted to show comparisons of handwriting," but such copies have been excluded when not offered for comparison with enlarged copies of the genuine signature." Testimony as to the genuineness of handwriting has been extended to a mark or cross by means of which an illiterate person signed his name, its weight 1 64 Ia. 736. 231 Wis. 512. Kansas R. Co. v. Smith (Ala.), 8 So. Rep. 43 [1890]; 46 Ia. 109. Chestnut H. Tk. Co. v. Piper, Peuna. Sup. Ct., Jan'y 1884. Barker v. Town of Perry (Ia.), 25 N. W. Rep. 100 [1885]. Glasier v. Town of Hebron, 16 N. Y. Supp. 503, an embankment; see Locke v. Sioux City & P. R. Co., 46 Ia. 109; Reddin v. Gates, 52 Ia. 210; German T. S. v. City of D., 17 N. W. Rep. 153; Udderzooks Case, 76 Penn. St. 340; Ruloff v. People, 45 N. Y. 213; Marcey v. Barnes, 16 Gray 162; note 26 Am. Repts. 319; note 38 Amer. Rep. 474; note 23 Alb. Law Journal 182; Cozzens v. Higgins, 3 Keyes 206, a cellar floor; Dedrichs v. Salt Lake C. R. Co. (Utah), 46 Pac. Rep. 656. 120 Alb. L. J. 4. 8 Blair Pelham, 118 Mass. 421; Mulhado v. R. R. Co., 30 N. Y. 370; Cooper e. St. Paul City Ry. Co. (Minn.), 56 N. W. Rep. 42. Udderzook v. Commonwealth, 76 Pa. 11 Cooper v. St. Paul City R. Co., supra. 12 In re Foster (Mich.) 3 Am. Law Times Rep. 411 [1876]; see also Eborn e. Zimpleman (Tex.) [1877]; Haynes v. McDermott, 11 Cent. L. J. 378. 13 Ayers v. Harris (Tex.). 13 S. W. Rep. 768 [1890]. 14 Marcy v. Barnes, 82 Mass. 161; but see Hynes v. McDermott (N. Y.), 22 Alb. L. J. 367 [1880]: also Tome . Parkerburgh B. R. Co.. 39 Md. 37 [1873]. 15 White S. M. Co. v. Gordon (Ind.), 24 N. E. Rep. 1053; and see Geer v. Lumber Co. (Mo.), 34 S. W. Rep. 1099. being for the jury.' The question of admissibility of photographs is one largely, if not entirely, for the trial judge; it is within his discretion to admit a photograph of a plaintiff in a damage suit, as evidence of the claimant's health and strength at the time of the injury, or to show the effect of a flood from a dam that had given way. The rejection of a photograph of premises whose boundaries are in dispute does not furnish a ground of exception." Photography is almost indispensable to the expert in the enlarged representation of minute objects or to emphasize details not easily recognized by the naked eye. In all cases, either the witness himself or the photographer, or some one familiar with the locality, should be called to testify that the photograph is a correct likeness or representation of the original object or locality." 6 881. Expert Witness should Fortify His Opinions with Authority and Undisputed Facts.-The expert having made all arrangements for the careful and critical representation of the circumstances, he must next prepare himself to present his case clearly and forcibly. Although he need not be familiar with the language of the authors or books he quotes or refers to, he should be acquainted with the substance and theory of the subject, and know the volume and page in which it is contained. He should review his notes and memoranda of his past work and experience, compare it with the books, reports, and views of other engineers, check them by computations and experiments, and use every exertion to determine what is and what is not the true merit of the question. His reasons should be formulated and prepared, for he may or may not be asked to explain the reasons of his opinions. 882. Experts should Seek the Confidence and Respect of the Court.-In his preparation, the engineer always should have in mind the presentation of plain truth in plain English. It should be his aim and effort to gain the respect, confidence, and good will of the court and jury. His competency and privileges depend upon the impression made upon the court and the discretion and judgment it may exercise. It should be his highest endeavor to present his beliefs and opinions by the most convincing proofs, and in a manner that may be fully comprehended by every member of the court and jury. New and unaccepted theories, foreign phrases, terms, and titles, and technical distinctions, cannot have the weight of plain Anglo-Saxon common-sense, or some simple illustration in every-day life. A sensible, moderate, earnest 1 State v. Tice (Oreg.), 48 Pac. Rep. 367. Verran v. Baird (Mass.), 22 N. E. Rep. 630 [1889]; Cleveland, C., C. & St. L. Ry. Co. v. Monaghan (Ills.), 30 N. E. Rep. 869 [1892] 3 Gilbert v. West End St. Ry. (Mass.), 36 N. E. Rep. 60. 4 Verran v. Baird (Mass.), 22 N. E. Rep. 630 [1889]. 'Hollenbeck v. Rowley, 8 Allen 473 [1864]. 6 Marcy v. Barnes, 82 Mass. 161; and see 9 Amer. Law Rvw. 173. Nies v. Broadhead, 27 N. Y. Supp. 52, also Roosevelt H. v. N. Y. El. R. Co., 21 N. Y. Supp. 205; Miller v. L. N. A. & C. Ry. Co. (Ind.), 27 N. E. Rep. 339 [1891]; Leidlein v. Meyer (Mich.), 55 N. W. Rep. 367; Hollenbeck v. Rowley, 8 Allen 473 [1864], which seems to hold that photographer must verify the picture under oath. disposition to present one's views plainly and clearly for what they are worth, a careful avoidance of any effort to force conviction into the minds of the court, is far more effective than any attempts to show how very simple and plain the one side is and how preposterous and unheard of are the opinions of the opposite side. A simple acknowledgment that contrary opinions exist, and the fact that witness is familiar with them, has considered and weighed both sides of the question, and has come to his conclusion by study, observation, and reasoning, will carry with them much stronger convictions than any amount of blustering. Force cannot exist without counter resistance in mechanics, and this is equally true in argument. The moment a witness insists or undertakes to impose his views, that moment he arouses resistance in his listeners, which renders his efforts the more unavailing. Much depends upon the good opinion of the court. It is within its power to permit or deny the engineer the privilege of testifying, to determine whether the witness comes within the requirements of an expert, which is in nowise a question for the jury.' 883. Trial Court Determines the Privileges of an Expert Witness.—The preliminary question whether a witness offered as an expert has the necessary qualifications is for the court, and is largely within its discretion.' Unless it appears from the evidence that the trial court's decision was erroneous or founded on an error in law, it is conclusive." If it be apparent that expert testimony would tend to assist the jury in coming to a conclusion on the facts, it is not error for the trial court to admit it. It has been held no error for the trial judge to refuse to receive the expert testimony of a professor of civil engineering who has made the law of moving bodies a study and can tell how far a train will move by its momentum, as to the distance a train would travel, on a question to contradict the testimony of other witnesses testifying from practical experience, on appeal. The manner and extent to which an expert may refresh his recollections by references to memoranda or books is also determined by the presiding judge-a discretion that may be exercised with reference to the circumstances of the case and sometimes with reference to the conduct and bearing of the witness upon the stand." In the furtherance of justice, the court may in its discretion depart from 1 Jones v. Tucker, 41 N. H. 546 [1860]; Mut. F. I. Co. v. Alvord (C. C. A.), 61 Fed. Rep. 752. 2 Sneda v. Libera (Minn.), 68 N. W. Rep. 36; Helfenstein v. Medart (Mo. Supp.), 36 S. W. Rep. 863; Beckett v. N. W. Masonic Aid Ass'n (Minn.), 69 N. W. Rep. 923. Manghan v Burns Estate (Vt.), 23 Atl. Rep. 583; St. Louis & S F. Ry. Co. v. Bradley, 54 Fed. Rep. 630; Howl nd v. Oakland St. Ry. Co. (Cal.), 42 Pac. Rep. 983; see also Santa Cruz v. Enright (Cal.), 30 Pac. Rep. 197; and Chateaugay O. & J. Co. v. Blake, 12 Sup. Ct. Rep. 731, as to the capacity of an ore crusher; Campbell r. Russell, 139 Mass. 278 [1885]. and cases cited. 4 State v. Hendel (Idaho), 35 Pac. Rep. 836. 5 Blue v. Aberdeen & V. E. R. Co. (N. C.), 23 S. E. Rep. 275. 6 Johnson v. Coles, 21 Minn. 108 [1874]; Wabash R. Co. v. Defiance (Ohio), 40 N. E. Rep. 89. the usual order of introducing testimony. It may permit experts to testify before the establishment of facts by the other witnesses.' It determines the propriety of questions asked, and it is within its discretion to reject questions put to witnesses, if in its opinion they do not bear upon the question at issue. Questions to experts are in a large measure hypothetical and remote, and are likely to receive a much more liberal consideration under a good impression on the part of the judge than in the face of distrust and fear. After the witness has given his own professional opinion in reference to what he has seen and heard, or upon hypothetical questions, it is then within the court's discretion to limit further interrogatories as to what other scientific men have said on such matters, or in respect to the general teachings of science thereon.' The extent to which the temper and disposition of a witness may be shown on cross-examination is largely within the discretion of the trial court; and the extent to which it may be pursued to test his memory is within the discretion of the court. In cross-examination a witness may be asked in regard to any interest he may have in the result of the trial, as affecting his credibility, and he may be asked as to whether the examinations made by him were made in a careful or a superficial manner. Such a question is not objectionable as substituting the opinion of the witness for the judgment of the jury on that point." 6 In conclusion, it may be said that too much care cannot be taken in the preparation for the expert witness-stand, and any man (engineer) who conscientiously does his duty will merit all that he is likely to get for his services. 884. Behavior of Expert Witness in Court-When will Expert Testimony be Admitted.-An expert's duties in court may be embraced in two classes (1) The suggestions and promptings he may give to the attorney in examination of other witnesses, and (2) his offices and privileges while upon the stand himself. Little can be said upon the former, as the character and amount of assistance must depend upon the character, disposition, and private ideas of the individuals, and their skill, practice, and methods. As a general rule, opinions of witnesses are not admissible as evidence; they must speak as to facts within their knowledge; but upon questions of skill or science, with which the jury are not familiar, men who have made the subject-matter of inquiry the object of their particular attention or study are permitted to give their opinions. They are admissible (1) when the question involves subjects which are beyond the determination and full understanding of the judge and jurors, and (2) when the witness offered is fully qualified to give the required information. The rule 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. We have chiefly to deal with the law, as we cannot determine the judges' opinions of individual cases (or person). Courts are inclined to limit the testimony of experts to the rules now in use, and to confine witnesses to facts in all cases where practicable, and to leave the jury to exercise their judgment and experience upon the facts proved. Facts may be specifically contradicted, and if witnesses testify falsely they are liable to punishment for perjury, while opinions may not be proved positively wrong, and false opinions may be given without fear of punishment." The fact that a witness may know more of, or may better comprehend, the subject than the jury is not sufficient to authorize opinion evidence, but it must relate to some trade, profession, science, or art in which the expert has more skill, and can pass better judgment than jurymen of average intelligence. If the facts can be placed before the jury, and they are of such a nature that jurors generally are as competent to form an opinion in reference to them and to draw inference from them as experts, then the opinions of witnesses are not competent, and such evidence should only be received in case of necessity. A question which elicits a reply based on a mere arithmetical calculation is not objectionable as calling for expert testimony." If the relation of facts and their probable results can determined without special skill or study, the facts must go to the jury, who will be left to draw their own conclusions and to form their own opinions. If the inquiry relates to a subject which does not require peculiar habits of study in order to enable a man to understand it, the opinion of skilled witnesses is not admissible. The true test is not whether the subject-matter is common or uncommon, or whether many persons or a few have some knowledge of it, but whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge any aid to the court or jury in determining the questions at issue. 885. Some Questions Held Not to Require Experts to Determine.-It has been held that a question "whether, under circumstances proven, it was a proper time to burn brush," was not a question requiring the assistance of 'Jones v. Tucker, 41 N. H. 546. Furgeson v. Habbell, 97 N. Y. 507 [1884]. Staffords v. City of Oskaloosa, 64 Ia. 251 [1885]. Overby v. Chesapeake & O. Ry. Co. (W. Va.), 16 S. E. Rep. 813. 4 Witmark v. Manhattan Ry. Co. (N. Y. App.), 41 N. E. Rep. 78. Belair v C. & N. W. R. Co., 43 In. 662; Van Wyclen v. City of B., 118 N. Y. 424 [1890]. 6 Overby v. Chesapeake & O. Ry. Co., (W. Va.), 16 S. E. Rep. 813. |