
    Chicago, Rock Island & Pacific Railway Company v. George Holmes, Jr., Administrator of the Estate of John E. Oakleaf, Deceased.
    Filed April 30, 1903.
    No. 12,352.
    1. Action Under Lord Campbell’s Act: Evidence. In an action by an administrator for the benefit of the widow and children under section 2, chapter 21, Compiled Statutes, evidence as to the amount of property left by the deceased is inadmissible. Chicago, R. I. & P. R. Co. v. Hainbel, 2 Neb. (Unof.) 607, followed.
    2. Evidence Admissible for One Purpose. Where evidence admissible for the one purpose is not relevant as to other subjects or for other purposes, an instruction limiting its effect must be asked; but where evidence received is not admissible for any purpose, no such request is necessary.
    3. Expert Witness: Ultimate Fact. It is error to permit an expert witness to give his opinion on the ultimate fact to be determined • by the jury.
    4. -: Error Without Prejudice. Where the facts upon which such opinion is based are stated, and the conclusion is one which must necessarily be drawn from such facts, error in permitting an opinion upon the ultimate fact to be determined by the jury to be given in evidence is without prejudice.
    5. Witness: Conclusion. But where the witness saw the occurrence with reference to which he testifies, and differences of opinion as to the conclusion to be drawn may reasonably arise, he should be required to state facts, rather than give his conclusion upon the ultimate issue.
    Error to the district court for Douglas county: William W. Keysor, District Judge.
    
      Reversed.
    
    
      M. A. Low, W. F. Evans, James M. Woolworth and William D. McHugh, for plaintiff in error.
    
      George W. Cooper and Martin Neilan, contra.
    
   Pound, C.

The accident out of which this case arises occurred upon a track in a portion of the yards of the Union Pacific Railroad Company in Omaha, used jointly for switching purposes by the Union Pacific Company and the Chicago, Rock Island & Pacific Railway Company, the defendant. The particular track is known as track No. 1, and is used for cars which are distributed to other tracks and made up into trains. Oakleaf, the deceased, whose administrator is plaintiff in this case, was a SAvitchman employed by the Union Pacific Company. At the time of the accident he Avas assisting in making up a train upon the east end of said track No. 1. This track slopes from west to east to such an extent that a car can hardly stand without haAdng the brakes set. The Union Pacific Company had twenty cars, nearly all of them loaded, at the east end of the track, and the brakes were set only upon one car, which Avas the extreme car at the east end. The switch engine was at the east end of this string of cars and was endeavoring to couple the last car of the tAventy to the others and to take the cars east upon the track. It made several attempts to couple the one car to the other nineteen, but upon each occasion the coupling, Avhich was automatic, failed to work. Oakleaf went in- betAveen the one car and the remaining nineteen, arranged the coupling, and signaled to the engineer to back up. As the coupler failed to work, he went in again, in the endeavor to repair or adjust the coupling, and, Avhile there, the nineteen other cars moved doAvn upon the sloping track and caught him between the couplers of the two cars, killing him immediately.

The theory of plaintiff is that these cars came down and caught Oakleaf between the couplings by reason of being struck or run into at the west end by a Rock Island train, which was engaged in switching at the west end of said track No. 1, and that there was negligence on the part of the Rock Island Company in not stationing some one so as to warn the employees of the Union Pacific Company,' and in not talcing proper precautions to prevent their cars from pushing into those switching at the other end of the track.

The defendant’s theory was that as the nineteen cars were standing on a sloping track, where a single car could scarcely stand without brakes being set, and as they were heavily loaded and the brakes were not set, the repeated jars, as the engine and single car pushed into them from the east in the endeavor to make a coupling, were sufficient to put them in motion down the incline and to account for the accident. The defendant contended also that the deceased was guilty of contributory negligence in getting between the iron drawheads, with his back to the nineteen cars standing without brakes set, upon the sloping track, in such a position that he could not see them as they came upon him, whereas, if he had stood upon the side of the drawhead in front of it, he need not have been injured. The jury rendered a verdict for the plaintiff, and the judgment rendered pursuant thereto is before us on petition in error.

The principal errors assigned are based upon rulings in the introduction of evidence. In order to pass upon these rulings intelligently, some further statement of the evidence is requisite. No one testifies directly that the Rock Island cars struck or came in contact with the nineteen cars of the Union Pacific Company, but several witnesses stated it as their opinion that such was the fact. One Potter, a switchman of the Union Pacific Company, introduced as a witness for the plaintiff, who saw more of the accident than any of the other witnesses, testifies that the nineteen cars came down gradually, with no jar and no noise, and moved so gradually and quietly that Oakleaf had no warning. It is manifest that this evidence is entirely compatible with the theory of the defendant that the nineteen cars were set in motion by the jars of repeated attempts at coupling and the fact that they were standing upon a steep incline with no brakes set. The other witnesses who testified speak with reference to the jar produced by these cars coming down against the one car and the engine attached thereto. Their testimony is that there was a considerable jar and that it came from the west; but it is clear, in the light of Potter’s testimony, that the defendant’s theory affords a complete and adequate explanation of the occurrence, and that a verdict for the plaintiff must rest on inference and comparative probabilities only.

As has been stated, the action is brought by an administrator on behalf of the widow and children to recover damages for alleged negligence in causing the death of the intestate. The widow was asked this question: “What property, if any, did Mr. Oakleaf have at the time of his death?” Due objections were interposed, but the court overruled them and permitted the witness to answer, “Not any, at the time of his death.” This ruling was excepted to and is assigned as error. We think the case in this respect is the converse of and is governed by Chicago, R. I. & P. R. Co. v. Hambel, 2 Neb. (Unof.) 607. In the Hambel case the defendant sought to prove that the deceased left a large and valuable estate. Here the plaintiff was allowed to show that he left none. As the court said, quoting an eminent authority, in the Hambel case:

“A dollar lost, whether by poor man or rich man, is neither more nor less than a dollar, and a reasonable expectation of benefit to a certain amount, must, when lost, be compensated to the same extent, whether the loser be rich or poor.”

The plaintiff showed in evidence how much the deceased earned, what portion of his earnings he devoted to his family, and his expectation of life. Also, his character and disposition as to industry and frugality were shown. These facts determined the damage which his wife and children had sustained. Whether he left them in wmalth or in poverty had no bearing upon the case. Counsel argue that the evidence was admissible to show Avhether he was saving and frugal and had accumulated an estate. But it does not go to that point. If he left property, it did not follow that he had earned or saved it. He might have derived it from gift or by inheritance. Moreover, the evident purpose was, not to ascertain whether he had accumulated property, but to show that his widow and children were left destitute. The testimony in question obviously might have been prejudicial. Having been shown in evidence, the destitution of the beneficiaries in the action was a matter to be urged by counsel in argument and considered by the jury. But there was no issue in the case upon which that fact was relevant, and it could not fail to excite sympathy and prevent a dispassionate review of the questions of fact, “uninfluenced by sentimental considerations.” Robertson v. Brown, 56 Neb. 390, 391. We have seen that there Avas a very close and very grave question; Avhether the defendant Avas in any manner responsible for the death of plaintiff’s intestate, and whether the deceased Avas not guilty of contributory negligence. In Anew of all the evidence and the doubts which it suggests as to the defendant’s liability, we can not say that the error was without prejudice. Counsel suggests that an instruction should have been requested. Where evidence admissible for one purpose is not relevant as to other subjects or for other purposes, an instruction limiting its effect must be asked. Carleton v. State, 43 Neb. 373, 396, 404. Where it is not admissible for any purpose, no request is necessary.

Counsel for the plaintiff asked one of his Avitnesses, a switchman in the employ of the Union Pacific Company, Avho had seen the accident, this question: “When Mr. Oak-leaf, in the performance of his duty, at that time and place, went in there to do this work, was it necessary for him to do Avhat he did do?” Objection was made to this question; it was overruled; and the Avitness was permitted to answer in the affirmative. We think this ruling was erroneous. It is error to permit an expert to give his opinion on the ultimate fact to be determined by the jury. Read v. Valley Land & Cattle Co., 66 Neb. 423. The very question which the jury were to decide was, whether it was necessary for Oakleaf to stand- in front of the drawbead, with bis back to tbe nineteen cars, or, whether, as a prudent man, be should not have stood upon tbe side in such position that he would nob be crushed between the drawheads in case the cars came together. The witness Potter testifies that in order to see what was tbe matter with tbe coupling, which was failing to work, it was not necessary for Oakleaf to get in front of tbe drawbead. Testimony to this effect was scarcely needed, because it must be apparent to any reasonable mind that-the coupling could be examined as easily by standing at tbe side and looking at it, as by getting squarely in front of it, and between tbe projecting couplers of tbe car's. If the testimony in question is regarded as that of a.n expert, it is clearly incompetent, under tbe rule announced in Read v. Valley Land & Cattle Co. supra: Whether or not it is intended as expert evidence, it is open to tbe further objection that tbe witness in question saw tbe accident, or at least bad personal knowledge of tbe circumstances under which it took place, and was able to state fully tbe situation and circumstances from which tbe jury could judge whether Oakleaf’s course was necessary and prudent. He should have been required to state tbe facts from which bis opinion was derived, so long as it was practicable to place those facts before tbe jury, and to state what would be a prudent and careful course in doing what Oakleaf bad to do. The jurors would then have been left to form their own opinion from such facts and from tbe evidence as to what would be a proper way of doing tbe work. It is contended on behalf of tbe plaintiff that tbe error was not prejudicial, because tbe conclusion was one which tbe jurors must have drawn necessarily from tbe facts if tbe witness bad not given bis opinion. We can not agree. It seems evident to us that there was no necessity for tbe plaintiff to put himself in such situation as be did and, as has been seen, one, of plaintiff’s witnesses so testifies. Counsel urges further that tbe witness whose opinion was allowed to be given bad previously stated all tbe circumstances upon which bis opinion is based. Upon examination of his evidence, we find that he stated the general circumstances of the accident, but nowhere does he state the nature and construction of the coupling, or other facts connected with it indicating any necessity for the plaintiff to examine it as he did.

We therefore recommend that the judgment be reversed, and the cause remanded for a new trial.

Barnes and Oldham, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause is remanded for a new trial.

Reversed.  