
    WRIGHT v. CITY OF FORT HOWARD.
    
      (Supreme Court of Wisconsin.
    
    March, 1884.)
    1. Evidence—Leading Question—Effect of Injury. It is not leading to ask a plaintiff who sues for injuries occasioned by a fall from a defective sidewalk: “State whether you are not now suffering from the effects of that fall.” It does not unmistakably suggest the desired answer, which is the characteristic of a leading question.
    2. Same—Opinion. Such a witness, though not a medical expert, may testify with respect to the injury and its present effects. It is matter of fact, not mere opinion.
    Action in damages against the city for injuries suffered by reason of a defective sidewalk. The jury, by a special verdict, found that the walk was out of repair, and had been so for a long time, and that the city authorities should have known of its condition, and also that the injuries were received by reason of its condition. The jury gave plaintiff $2,770.83, and the defendant appealed.
   Cassoday, J.,

in delivering the opinion of the Court, said: The plaintiff was asked this question: “ State whether you are not now suffering from the effects of that fall?” This was objected to as leading, immaterial, and incompetent. Certainly it was neither incompetent nor immaterial for the reasons just given. A leading question is one which unmistakably suggests the desired answer. (McPherson v. Rockwell, 37 Wis., 159.) The only word in the question tending to suggest such answer is the word “not.” In view of the fact that she had already testified in effect that the fall produced a miscarriage, which must necessarily have caused suffering, we cannot say there was any abuse of discretion in overruling the objection, (Ib.) The leading feature of the question only went to the continuation of the suffering.

The same witness was also asked this question: “What injury are you suffering from now in consequence of that fall?” This was objected to as immaterial and incompetent, and for the further reason that the witness had not shown that she had medical knowledge, or was capable of testifying as an expert. The question was certainly material and competent for the reasons given. Was it objectionable for want of medical knowledge or opacity of the witness to testify as an expert? The mere opinion, without knowledge, of a non-expert, is inadmissible. (Yank v. State, 51 Wis., 469.) , But here the inquiry was as to what injury the witness herself was then suffering from in consequence of the fall? It did not necessarily call for the exercise of any scientific knowledge or skill. It called for facts relating to the then present condition of the witness, —her suffering and the source of it. The nature of the injury was such that the cause of her suffering was more or less latent and concealed from common observation, and yet necessarily perceptible to the senses of the witness. It, in effect, asked her what pain or disability she was then enduring in consequence of the fall. It is very much like the question put to the plaintiff witness who sued for personal injury, in Creed v. Hartman, 8 Bosw., 123, which was this: “State to the jury the effect of that injury upon you, and how your situation is.” And it was held admissible, on the ground that there was no opinion of an expert elicited or requested. It simply called for “ facts, of which,” the Court said, she, in some respects, could alone be fully apprised, and in all was best apprised.” That case was affirmed in the Court of Appeals; but, seemingly, counsel abandoned that objection, for it received no attention in that Court. (29 N. Y., 591.) To the same effect is South, etc., Co. v. McLendon, 63 Ala., 266; Laws. Ex. Op. Ev. 470 et seq. Mrs. Wright was certainly much better qualified to state her own internal condition, her own pain and suffering, and perhaps the cause and source of it, than any one else, and certainly better than any non-expert. But Courts have gone farther, and held that unskilled witnesses are not precluded from testifying from such facts as come within their own observation relating to ordinary injuries or sickness of those with whom they have consorted. (Sydleman v. Beckwith, 43 Conn., 9; Parker v. Boston, etc., Co., 109 Mass., 449; Commonwealth v. Sturtivant, 117 Ib., 122; Thompson v. Stevens, 71 Penn. St., 161; Elliott v. Van Buren, 33 Mich., 49; Wilkinson v. Moseley, 30 Ala., 562; Rogers v. Crain, 30 Tex., 284; 1 Greenleaf on Ev., Sec. 440, and notes.) The rule seems to be based on the ground of necessity, and confined to cases where the subject of inquiry is so indefinite and general as not to be susceptible of direct proof, or where the facts are so numerous or changeable as to be incapable of being held in the memory or detailed to the jury, (Ib.) We must therefore conclude that where a plaintiff sues for personal injury and is a witness in his own behalf, and his pain, suffering, or internal condition, is pertinent to the issue and perceptible to his senses, a question put to such party eliciting a description of such pain, suffering, or condition, and not necessarily requiring scientific skill or knowledge, is a question calling for facts and not mere opinion.

Judgment affirmed.  