
    The Steamboat Clipper v. Linus Logan.
    One conversant with steamboats, as master, engineer and builder, having examined a boat injured by collision on the Ohio river, may state, in connection with the facts, his opinion as to the direction from which the boat was struck, at the moment of contact.
    Any such person, having examined the injured boat, may describe her condition, and say whether, in his opinion, she is worth repairing.
    In an action of trespass against a boat, for injuries caused by a collision, the plaintiff is not restricted, in the recovery of damages, to the amount named in his bill of particulars and affidavit.
    This is a writ of error to the Superior Court of Cincinnati.
    The original action was trespass, brought by Logan against the steamboat Clipper, for wrongfully running into and damaging the steamboat Mail, while navigating the Ohio river, on the 20th of March, 1844.
    The case was tried at the June term, 1848, when the jury returned a verdict for the plaintiff, upon which a judgment was rendered.
    Sundry bills of exceptions were taken during the progress of the trial, disclosing, among others, the following facts:
    1. On the trial, the plaintiff, in support of the issue on his part, offered T. J. Haldeman as a witness, who, being sworn, stated “ that he had been an engineer and captain of a steamboat for 16 or 18 years, and had built several boats as a proprietor ; that he was not present at the time the boat, owned by the plaintiff, received the injury for which this suit was brought, but that he saw her after she had been injured by a •collision with the defendant, and his attention was called to the break or fracture produced by the collision.” He was then .asked by the counsel for plaintiff: “ From the breach or fracture in the injured boat, how, or in what direction the blow she received, appeared to have been given.” The witness answered, “ that the blow appeared to have been given nearly head on — rather quartering.” The defendant objected to the ■question, as requiring from the witness a mere opinion or belief, and objected to the answer as evidence, etc.
    The plaintiff also offered John Christy as a witness, who stated “ that he had been and was an engineer of a steamboat; that he had seen the boat injured by the collision for which the suit was brought, before and after the collision; that she had been torn up after the injury ; that, in her crippled condition, he considered her worth $3,000.” He was then asked by the plaintiff: “ State the condition of the boat, and whether or not the boat, after she was injured, was worth repairing.” To so much of this question as required from the witness his opinion whether the boat was worth repairing, the defendant objected. The objection was overruled, and the witness answered, stating the condition of the boat, and “ that she was not worth repairing.” The defendant objected to receiving this answer as evidence, etc.
    2. The plaintiff then offered the deposition of Jno. E. White, who stated that he was a pilot of steamboats; that he was acquainted with Elijah Staats, under whose charge as pilot, the steamboat Clipper was at the time of the collision for which the suit was brought. After being interrogated, and testifying as to the character of said Staats as a pilot, he was asked, by counsel for the plaintiff, this question : “ You say in your answer to the cross-examination, you never heard of any difficulty which he (said Staats) had. Did he ever steer alone his watch; if so, how was the water, and did he or not get into danger ? ” This question was objected to. The witness answered : “I fetched him one trip with me on the Montezuma. I was up with him, till we came below Marietta, the principal part of the time. After we got below there, I trusted him a little more to himself — the water was better. Well, we had no trouble until we came down to Manchester. He came pretty near running over the Swiftsure, but he didn’t do any hurt. It was rather owing to his bad management. He went to take the point side, which was the place for the other boat. He got deceived a little. The stage of water was five feet at Pittsburg. I don’t know how much there was at that place — there was enough to run, however.” '
    This question and the answer were objected to, but they were received as evidence to the jury.
    3. The plaintiff claimed, on the trial, that the collision occurred by reason of the incompetency of the pilot, and the negligence of the officers and crew of the Clipper, and without any fault on the part of those managing the steamboat Mail. “ The defendant offered evidence tending to prove that there was negligence and fault on the part of those managing the Mail, the plaintiff’s boat, which had contributed to the occurrence of the injury; and that the pilot navigating the Mail, had mistaken the position of his own boat and the position of the defendant, and had, in consequnce, altered the course of his boat, and thereby caused the collision.”
    The court having instructed the jury as asked by the defendant, the plaintiff asked the court to charge—
    2d. “ If the danger of collision arose suddenly, and by the fault of the defendant, the plaintiff is entitled to recover, even if he did make a mistake, unless such mistake contributed to-the injury, and was such a .one as a pilot, using ordinary care, skill, prudence and knowledge, should not, under the circumstances, have made ; and if any such mistake is set up in the defense, it is for the defendant to satisfy them that it was made.” Which charge the court gave, with this modification : a It is incumbent on the plaintiff, in the first place, to show that he navigated skillfully, prudently and diligently — in other words, that he was without fault.”
    The plaintiff also asked the court to charge—
    Sd. “ If the defendants claim that they were in the wrong, yet the plaintiff was also in the wrong, and that, therefore, it is a case of mixed fault, it is for the defendant to show, satisfactory to the jury, wherein the fault of the plaintiff lay.”
    Which charge the court gave, with the modification above stated.
    4. The jury returned a verdict in these words: “ We, the jury, assess the plaintiff’s actual damages at the sum of $8760, and if the damages are to be confined to the bill of particulars attached to the aflidavit and praecipe, then we assess the plaintiff’s damages at the sum of $2507, and leave the court to decide which the plaintiff is entitled to receive.”
    'The court rendered judgment for the plaintiff for $3760.
    The errors assigned are as follows:
    1. That the court erred in allowing the question to and answer of the witness Thomas J. Haldeman, as set forth in the bill of exceptions.
    2. In allowing the question to and answer of the witness; John Christy, as also set forth in the bill of exceptions.
    
      3. In allowing the question to and answer of the witness, John E. White, as set out in the bill of exceptions.
    4. That the court erred in giving the 2d and 3d charges, asked by the counsel for plaintiff, set out in the bill of exceptions.
    5. That the court erred in rendering judgment on the special verdict of the jury, for the sum of $3760, whereas said judgment should have been for $2507.
    6. That the court erred in rendering any judgment on the-special verdict of' the jury, the same not authorizing the rendition of a judgment, or finding any fact on which the court could act, as shown by the bill of exceptions.
    7. That the court erred in overruling the motion of the defendant below, to set aside the verdict of the jury, and grant a new trial, and in rendering judgment for the plaintiff.
    
      Coffin if* Mitchell, and Gfholson ¿f* Miner, for plaintiff in. error.
    ■ 1. The two witnesses, Haldeman and Christy, were interrogated as to a matter of opinion or belief. They were not examined as experts. To determine whether this point is well taken, we need only to refer to the record. Haldeman, if called upon to testify upon the subject, should have been asked to describe the breach or fracture, and the jury could then have formed their own opinion. Whether the blow appeared to-have been given nearly head on or not, was a fact to be testified to by those who had witnessed the collision, or to be ascertained by the jury from the facts in the case.
    Christy, who was not a ship carpenter or a boat builder, but an engineer of a boat, is asked to give an opinion whether the Mail, after the collision, was worth repairing or not. This is asking for an opinion from one not competent to give it. Having proved the condition of the boat by him, it should have been left to the jury to determine whether she was worth repairing or not. If an opinion upon that point was competent, it was the opinion of ship carpenters. A man may be an ex cellent engineer, and know nothing of ship-building.
    2. We claim that the question put to, and the answer received from White, as contained in his deposition, and above set forth, are in conflict with the well established rule of evidence, that, in impeaching character, the inquiry must be general, not particular. The object in this case was to show, that the pilot of the plaintiff in error, was unskillful and incompetent. The witness was interrogated and permitted to answer as to a want of skill on the part of the pilot in a particular case, and on a former occasion, in no manner connected with the occurrence out of which this suit originated. This, it is insisted, was error.
    8. There was error in the second charge of the court to the jury, being the first charge above set forth. As we understand the question involved in this charge, it results in this: Two
    vessels are approaching each other in the night; there is danger of collision; the pilot of the one is skillful and competent, but on this occasion, by a mistake in judgment, he changes the course of his vessel, and a collision ensues. There is fault on the part of the other vessel — for the want of a competent pilot or otherwise — but this fault, without the mistake in the change of the course of the other vessel, would not have produced the collision. Does this case come within the general rule, that no one can recover for an injury, to the occurrence of which his own wrongful act or want of skill has contributed ?
    The court, in this case, modified the charge, as asked, by saying to the jury, that it was incumbent on the plaintiff below to show “ that he was without fault.” But the inference which the jury were left to draw, was, that a mistake made by a competent pilot, or one which a competent pilot might make, though using ordinary care, was no fault within the meaning of the rule above laid down; in other words, that a man is not responsible for a mistake or want of skill, if such mistake or want of skill is one which a careful and competent person might make or exhibit.
    
      Where a direct and immediate injury is done to the person or property of another, no act on his part contributing to the occurrence of the injury, it will be no answer to an action that the act was unintentional, by mistake, or even by accident, unless such accident were inevitable. This is clear in ordinary cases of trespass. Louby v. Hafner, 1 Dev. Rep. 185; Amick v. O’Harra, 6 Blackf. 258. And the same rule applies in cases of navigation, when the injured vessel is lying at anchor in her proper place, or lying at a wharf. Stout v. Foster, 1 How. 89; U. States v. The Mayor, 5 Miss. 230; Case v. Mack, 2 Ohio Rep. 169.
    There is no reason why the rule should not equally apply in favor of a sailing vessel, wholly without fault, and using every precaution to avoid the injury. . To a claim for damages on the part of such a vessel, nothing short of an inevitable accident would be an excuse.
    If the above conclusions be correct, there would appear to have been error in the charge of the court. Any want of skill which resulted in injury, would induce a liability for damages, and of course would preclude a recovery. * -
    But, it will be said that the plaintiff in error was in fault, and brought on the danger of collision. This could make no difference as to the degree of skill incumbent on the defendant in error. As said by Lord Denman, in Mayor of Colchester v Brooke, (2 Ad. & El. N. S. 377:) u If, then, the defendant could not have done this purposely and knowingly, the same principle shows that he was bound to use due care and skill in the navigation of his vessel, so as not to do it unwittingly by want of these. As a general rule of law, every one, in the conduct of that which may be hurtful to others, if misunderstood, is bound to the use of due care and skill, and the wrongdoer is not without the pale of the law for this purpose.”
    It is believed that the error of the court below has arisen from a misapprehension, and an attempt to extend the rule laid down in Butterfield v. Forrester, (11 East. 60,) and Bridge v. Grand Junction Railway, (3 M. &. W. 244.) That rule isr “ that, although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary •care, have avoided the consequence of the defendant’s negli.gence, he is entitled to recover; if, by ordinary care, he might have avoided them, he is the author of his own wrong. That is the only way in which the rule, as to the exercise of ordinary ■care, is applicable to questions of this kind.”
    We have the right to presume that, but for the mistake on the part of the pilot of the plaintiff below, no injury would have ■occurred; of course, by ordinary care, he might have avoided the consequences of any negligence on the part of the defend.ant below. In truth, it seems the rule has no application, where the act on the part of the plaintiff, whether resulting from negligence or want of skill, or (as we insist) by mistake, directly •contributes to the occurrence of the injury. It is sufficient defense, “ that the injury sustained by the plaintiff is not solely ■imputable to the want of due care on the part of the defendant, but that the plaintiff has, by his own voluntary act, been contributing to it himself.” 54 Eng. Com. Law. Rep. 14.
    The* objection to the third charge of the court, being the .second above stated, is, that notwithstanding the modification which was added, it was well calculated to mislead the jury. We suppose that it results in this: It is sufficient for the plaintiff, in a collision case, to show proper and skillful navigation on his part; the defendant, being in the wrong, can only prove specific acts of default on the part of the plaintiff. If it was intended to convey the idea that, in such a case, the defendant was confined to proof of that kind — that he could not •contradict, generally, the case of the plaintiff, or offer any evidence tending to show that there was. a want of care or skill on the part of the plaintiff, the charge was erroneous. And though such may not have been the intention of the court, the whole charge would, it is submitted, be so understood by a jury; and if, on a fair construction of the charge, the jury may have been misled, it is sufficient ground of error to reverse ■the judgment.
    
      4. Upon the special verdict two questions arise:
    First. Whether the special verdict is one on which any judgment can be rendered. The jury, in substance, found a certain amount of damages; but if, in the opinion of the court, the plaintiff was bound by his bill of particulars, a certain other, and lesser amount.
    It is well settled, that a special verdict must find facts, and not the evidence of facts; and it must present to the court a question of law. Brown v. Ralston, 4 Rand. 504; Seward v. Jackson, 8 Cow. 406; Barns v. Williams, 11 Wheat. 415.
    Unless the bill of particulars is a part of the record, it cannot be referred to in aid of the special verdict; but suppose it can be referred to, how is it to be known whether the matter presented was, as to the effect of the bill of particulars, as evidence, or in respect of some question of law ?
    It appears to have been held, that the court cannot intend anything on a special verdict, which is not found by the jury. The verdict must be complete in itself, and cannot be aided by any extrinsic evidence. Lee v. Campbell, 4 Porter 203; Jenks v. Hallett, 1 Caines 60; McArthur v. Porter, 01 Peters 626.
    Second. If the court should be able to say that the special verdict in this case is sufficient to authorize the rendition of a judgment for one or the other of the amounts found by the jury, it remains to consider the question, which we happen to know, dehors the record, was intended to be presented; Whether a plaintiff under the act providing for the collections of claims against steamboats and other watercraft, can recover more than the amount of the demand stated in his bill of particulars, and verified by his affidavit, in pursuance of the 3d section of the act mentioned ?
    We propose to consider this question, 1st, under the general rules and principles applicable to all bills of particulars, and, 2dly, under the peculiar provisions of the act to which reference has been made.
    The object of a bill of particulars,' is to apprize the opposite party of the nature, state, and extent of the claim or demand he is required to contest. And, it already follows, that no substantial departure in the proof can be properly admitted. It would be a surprise, and operate as a manifest injustice. The practice, therefore, has been to obtain leave to amend before trial. There are cases in which verdicts beyond the amount claimed in the bill of particulars have been sustained, but they have been placed on the ground, that no objection was made to the testimony — that the opposite party was not misled — and that' no injustice has been done. But, as a question of law, it does not seem to have been doubted that a party is restrained in his proof and recovery to the items of his bill of particulars. As held in 17 Wend. 20, “ the only effect of a bill of particu lars is, to restrict the proofs and limit the recovery on set-off to the matters set forth in it.” Williams v. Sinclair, 3 McLean 289; Brown v. Calout, 4 Dana 219; Hurst v. Watkins, 1 Camp. 68.
    We insist, therefore, that as a question of law, and in the general form in which it was presented by the jury in their verdict, the plaintiff below was bound by his bill of particulars.
    Considering the question, in the next place, with a view to the provisions in the statute, and it would seem that the bill of particulars is not only entitled to the same legal effect as in ordinary cases, but lying at the very foundation of the jurisdiction of the court, it cannot be altered or amended, and is therefore conclusive.
    To authorize a warrant under the act, it is required that a praecipe shall be filed, accompanied by a bill of particulars verified by affidavit. The 4th and 5th sections show, that the amount of the demand is an essential fact in the bill of particulars.
    The craft, or such part of her apparel and furniture as may by necessary to satisfy the demand, is to be seized, and bond may be taken in double the amount of the demand sworn to he due.
    
    The bond is doubtless given with reference to the amount claimed by the plaintiff in his affidavit. If it were competent to allow a change in the bill of particulars, it would seem to be-unjust to the sureties in the bond. It is true they are required to have the property, or double the amount sworn to be due, forthcoming to answer the judgment. This, however, it is manifest, was with reference to the interest and costs. The whole law shows that it was not intended to seize more than would be necessary to satisfy the demands as claimed by the-plaintiff. If that demand could in every case be doubled by a change of, or addition to the bill of particulars, it would greatly increase the difficulty of obtaining sureties, and render the-operation of the law unjust and oppressive. Admitting that, in some particular cases, it may be a hardship to restrict the-plaintiff to the amount he has sworn to be due, still, such a construction of the law would be much less injurious in its consequences.
    But it is sufficient in this case, that no. such change was made-in the bill of particulars — and nothing more appearing, than the simple question whether a plaintiff is bound by his bill of particulars, we insist, it should be answered in the affirmative..
    
      T. D. Lincoln, for defendant.
    In this case several errors are pointed out in the record, or several points are made upon which it is claimed there is error.
    1. It is said to be error, that Capt. Haldeman was asked the direction of the blow which the Clipper made in the plaintiff’s boat, the Mail. This witness had examined the boat, and was in substance requested to give the direction of the break, in it. This I insist was competent as showing the relative position of the boats, by evidence in reference to which there could be no controversy. This was all that was sought by the question.
    It is also said to be error that another witness, John Christy, was permitted to testify as to the condition of the Mail, and whether or not she was worth repairing. This witness, as well as Haldeman, was an expert as to this matter. They were both as much experts as the law requires, even to enable them to give an opinion. It was the engine of the boat that was so greatly crippled. When this suit was brought it was supposed that the boat could be repaired, and the amount sworn to was made up in reference to that fact. Upon a more thorough examination of her condition, and after attempts were made to repair her, it was 'found that she was too much crippled, .and that she was fit only to be broken up and put into another boat; and that the real damage was not what it would cost to repair her, (as was at first supposed,) but the difference between her value before collision, and that after it; the boat to be used, or so much of it as could be, for building a new boat. This course was taken with the Mail.
    The question does not call for an opinion, but if it had, this witness was expert enough to answer it, even should the court say that1 none but an expert could give an opinion in answer to such a question; for he was a steamboat engineer, and was the very person to be called upon .to speak of the condition of the engine, and of the boat. He gave all the opinion he gave, in connection with the facts stated by him.
    Neither of the above witnesses were asked their opinions. Nor did they testify to them. But should the court regard the questions asked them, as questions calling for opinions, still it is insisted that they were sufficiently skilled to make it proper for them to answer the questions. Upon this point the court is referred to the following authorities: Cotryll v. Myrick, 3 Fairfield 222; -v. Foot, 4 Blackf. 292; Morse v. Crawford, 17 Verm.; Gentry v. McMannis, 3 Dana. 282; McKee v. Nelson, 4 Cow. 355; Griffin v. Brown, 2 Pick. 209; Clark v. Ohio, 12 Ohio 483; 6 Ala. 212; 11 Ala. 732
    Should the court regard the testimony such as an expert only could give, I claim that the court will regard the witnesses as such; 1st. Because the testimony shows them such: 2d. If the testimony did not show it, the court would still regard them as such, and not reverse the judgment, if the questions were proper for experts. Whether a witness is an expert, is a question for the court, and if it is denied that a witness is such, the objection should be to the witness. See cases refer red to below.
    These witnesses had long been engaged in boating, and had built boats, and were in fact experts in this matter. The whole of their testimony is not put down, and as counsel did not make the question below and have the witnesses fully examined to it, that the court might judge, they will be concluded from making such an objection now. See 1 Greenl. Ev. sec. 380, n. 3; State v. Allen, 1. Hawks 6; Mendum v. Commonwealth, 6 Randolph 704; 2 U. S. Digest, page 253, sec. 1269.
    2. It is further insisted that there was error in receiving testimony contained in John E. White’s deposition. It will be necessary for the court to read the whole of said deposition to see fully the unsoundness of the objection. Among other things, this witness was examined as to the capacity of Elijah Staats, the pilot at the wheel of the Clipper a.t the time of collision. The plaintiff below claimed that he was no pilot, and that the collision was the result of his want of skill. White had piloted with him a long time, and after having testified to his great want of capacity, etc., he was asked, on cross-examination, “ If he ever knew of any accident to happen while Staats was at the wheel.” What was the object of this question? Simply to show that Staats was a safe pilot, though John E. White thought otherwise. To remove the presumption which the defendant below would have insisted arose from the fact that no accident had befallen the boat while he had control of her, the question objected to was asked in these words: “ You say, in your cross-examination, that you never heard of any difficulty while he (said Staats) was at the wheel. Did he ever steer his watch alone ? If so, how was the water, and did he or not get into danger ?” In answer to this, the witness in substance swore, that he was never permitted to be at the wheel alone but once, and then by his want of skill he got into difficulty. This was clearly competent. It was simply disposing of a presumption that might otherwise have arisen from a previous answer by facts drawn out by another question.
    It is said that it was giving a single instance of bad management to beat down the skill of the pilot, and that nothing but his general character as a pilot, can be given in evidence. The purpose of the question was not what is represented. Had it been, it would not have been error; for it has been decided that in cases where the skill of a person is in issue, you may show his want of it by giving instances in this way. McKiney v. Niel, 1 McLean 544. That was not, however, the object of this testimony. White had piloted with Staats for the two years preceding, and the defendant below wished from that fact, and from the facts stated by White on cross-examination, to show that he really was a good pilot. The propriety of showing that, during all this time he was never permitted to stand at the wheel alone but once, and that then he got into difficulty by his unskillful management, is very apparent. He was at the wheel alone when this collision took place.
    3. It is also said, that there is error in the 2d and 3d charges asked and given for the plaintiffs below. These charges were asked just after those asked and given for the defendant below, and in reference thereto; and in judging of their correctness, it is necessary for the court to read over those charges. All they ask was given. The charges complained of, were asked in order to qualifiy those just previously given for defendant in error.
    I claim that the charges given for the defendant below, were erroneous, inasmuch as the 7th, 8th and 9th, proceed upon the supposition that a mere mistake of the pilot of the Mail (if he made one) as to the true position of the Clipper, would defeat the right to recover. Whereas, that is not law, unless such mistake was the result of a want of ordinary care, skill or knowledge. Suppose that, by the fault of the pilot of the Clipper, the pilot of the Mail, as danger was suddenly brought upon him, though using all care, etc., did make a mistake, but such a mistake as any pilot • using due care would make under like circumstances; this would not be a fault in law, nor would it deprive the plaintiff of -his right to recover.
    The case of Champlin v. Hawe, is precisely in point. 3 Car. & Payne 554; 14 E. C. L. 446.
    The court is also referred to the following cases. Thej show that there may be a mistake and the party still have a right to recover. Raisin v. Mitchell, 38 E. C. L. 254; Ingalls v. Bills et al., 9 Met. 3, 15; Jones v. Boyce, 1 Stark. 493; Lincoln v. The Saratoga Railroad Company, 23 Wend. 425.
    The last three cases show, that even where persons seated in stage coaches and railroad cars, on the appearance of danger presented without their fault, jump therefrom and are thereby injured, they can recover for such injury, although it be proved that, if they had remained quiet, no injury would have’befallen them.
    No man is in fault, if he makes use of ordinary care, skill and knowledge. The court is referred to the following cases. There are numerous others to the same effect:
    
      Clapp v. Young, 6 Law Rep. 115; Bridge v. The Grand Junction Railroad Co., 3 Mees. & Wels. 244; Walters v. Pleif, 22 E. C. L. 335; Butterfield v. Forrester, 11 East. 60; New Haven Steamboat Tr. Co. v. Vanderbilt, 16 Conn. 430; Marriott v. Stanley, 39 E. C. L. 563; Lane v. Abercombie, 12 Pick. 177; Smith v. Smith, 2 Pick. 622; Carsley v. White, 21 Pick. 255.
    If this were not so, no men but the most skillful or careful, could be engaged in any trade or business. No higher degree of care or skill is required of any man, or of a plaintiff, than that ordinarily exercised by the great body of careful, skillful and prudent men, in the same business or trade.
    All these instructions must be viewed together, otherwise the court will be misled. They show that the court below charged, in substance at least, that the plaintiff must satisfy the jury that he was free from fault, and that the defendant was not; that, because he was not, the collision resulted; and that a mere mistake, if it be such an one as a pilot, using ordinary care_ skill, etc., under the circumstances, would be likely to make, is not equivalent to a fault, in the sense of the law.
    The most careful and skillful men, though using all the care required of them by law, are liable to make mistakes.
    4. It is next said, that the verdict is not such an one as the court could render a judgment upon; that it is a special verdict, and that a special verdict shall find the facts. Several authorities are cited to these points. It is true, as these authorities establish, that a special verdict should find the facts and not the evidence. That is all the authorities referred to do establish: they do not affect this case.
    If the jury find facts enough to found a judgment upon, the court will enter it, though the verdict be informal or imperfect in other-respects. Hanks v. Crofton, 2 Burr. 698; Stearns v. Barrett, 1 Mason 169; Hobart 54; Petters v. Bingham, 10 N. Hamp. 517; Hodges v. Raymond, 10 Mass. 64; Thompson v. Batton, 9 Mass. 316; Fear v. Blanchard, 2 Yeates 543; Sawyer v. Hopkins, 9 Shep. 268; Montgomery v. Tillotson, 2 How. Miss. R. 215.
    So, if the language of a verdict is equivocal, the court will give it such meaning as to give effect to the verdict. Carr v. Stevenson, 5 Humph. 559; Aye v. Maxwell, 14 Verm. 14.
    The court will intend everything that may fairly be intended, to support a special verdict. State v. Fuller, 1 Bay 245.
    Every reasonable construction is to be adopted in support of a verdict. Huntington v. Ripley, 1 Root 321.
    “ We find the defendant,” has been held sufficient. Meek v. Childess, Minor 109; Taylor v. Rogers, Minor 197.
    A verdict thus: “ No cause of action,” is substantially a verdict for the defendant, and the court is bound to render judgment upon it. Fetter v. Williams, 2 Johns. 281.
    So too where a verdict, instead of finding the defendant guilty, finds for the plaintiff, it is good. Findley v. Buchanan, 4 Blackf. 12.
    
      So a verdict finding “ the debt charged in the declaration, to be discharged on payment of a less sum,” is good. Maulding v. Ripley, 1 How. Miss. 579.
    So a verdict for a special sum, with interest from a particular date. Bank v. Bowie, 1 McMullan 42.
    So a verdict for more than is claimed in the declaration is a. mere defect in form, and will not be set aside. Wilson v. Larmouth, 3 Johns. 433.
    The samp question in principle raised in reference to this verdict, was raised in the case of McMichen v. Amos, (4 Randolph 137.) This case also shows that the verdict in the case before the court, is not a special verdict in the strict sense of the term. It is a general verdict for the plaintiff, and general damages are found for him; but the jury also find, (and it is in this only, that there is anything resembling a special verdict,) that if the plaintiffs are confined to the bill of particulars, they then find another sum. All the facts are found, and a question of law is presented to the court by the verdict, and as the court decide that, the judgment. is to be the one or the other of the sums thus found by the jury.-
    It is what is called a general verdict for the plaintiff, subject to the opinion of the court as to the point of law presented by it. McMichen v. Amos, 4 Randolph 137; 1 Archbold Practice 192.
    There is nothing uncertain or equivocal in this verdict — no point of fact left out by the jury. Indeed there is nothing that can be said against it.
    As the court shall be of opinion upon the point of law, so - must the one sum or the other be rendered in judgment for the plaintiff.
    5. This brings me to the last objection taken by counsel for plaintiff in error.
    It is said that the plaintiff cannot recover a larger sum than that claimed by his bill of particulars, nor could he have amended it.
    
      On the contrary, the position taken by the defendant in error is, that what is generally known as a bill of particulars, cannot be made in such case, and, therefore, is not required by the statute.
    It is maintained that there are numerous cases where a remedy under the statute is given, in which no bill of particulars, in the ordinary meaning of that term, can be given, and therefore it is not required in such cases, further than that the plaintiff should clearly state the subject for which suit is brought, and swear to some amount by which the sheriff can regulate his bond.
    It is evident that, in all actions relating to personal injuries, the extent of the damage cannot be learned with any certainty, until long after suit should be brought. A man’s affidavit, then, in relation to such a matter, can be nothing but the merest conjecture. As the statute requires a positive oath, and not one to belief, I am led to the conclusion that no such thing as a bill «of particulars, sworn to, was ever contemplated in such cases. It is easy to foresee the disastrous effect of a decision that should confine a party to the amount which he might swear to.
    In all personal actions, and in other cases, his damage depends so much upon his own feelings, that, no matter what he might swear to, no indictment for perjury could ever reach him. The amount sworn to would, therefore, often be so large that it would be impossible for the parties to give bond; and in cases, particularly where the plaintiff is irresponsible, (and he is not required to give any security,) the greatest injury would be done to the steamboat interest, as well as to the general cause •of justice. Such a decision would be an inducement to perjury, defeat many an honest claim, and a great part of the claims -of conscientious men. Often, indeed, in cases of injury to property, the result would be a total denial of justice; for long before the damages could be ascertained with any certainty, the •boat would be in parts unknown, sold under sheriff’s sale, sold in some other parts, or in some other way taken beyond any process under this statute. >
    
      The court may be aware of the fact, for it is a fact, that in almost all great collision cases, the boat doing the injury is taken away as soon as she can be got away, and often even before a writ can be taken out for her.
    Take a case like the one before the court. The plaintiff’s boat was a complete wreck. It was supposed, however, that she could be repaired; but an attempt to do so, and a more thorough examination, showed that it could not be done. If it could have been done, nothing but a general sum for his damages could be given, and one which would as probably be wrong as right. Suppose the boat had been entirely lost, what could be done in the way of a bill of particulars ? A party could only give a lumping sum, which could be no guide.
    But I claim further, that a party is not bound by the exact amount of his bill of particulars in any case. He cannot re■cover for other items, but for the price or value of each item, he can recover according to his proof.
    And so in relation to the amount of damage named in the bill of particulars in this case.
    Where the matter in controversy is one of account, then a party would be compelled to give a bill of particulars, in the strict sense of that term. Yet even here he could recover a different price than the one named therein. But in matters of tort, a bill of particulars, in the strict sense, cannot be given, •and, therefore, is not required by the statute.
    The statute contemplates a judgment that the bond would •not satisfy, for that is satisfied by the return of the boat. And it is provided by the statute, that if the boat does not sell for enough to satisfy the judgment, the balance is to be collected as in other cases. In a case like .this, as between the plaintiff .and the boat, I claim that any amount not above the ad damnum, can be recovered, though larger than the amount named in the bond.
   Spalding, J.

This is a case of collision between the steam boats Clipper and Mail, on the Ohio rivei;. The plaintiff below •was the owner of the Mail, and instituted proceedings to recover damages for the injury sustained by his boat, under the act of Feb. 26, 1840, entitled' “ an act providing for the collection of claims against steamboats and other watercraft, and authorizing proceedings against the same by name.”

By the third section of said act, it became necessary for the plaintiff to file, with his praecipe, “ a bill of the particulars of his demand, verified by his own affidavit, or that of his agent or attorney, or other credible person.”

Under this requisition of the statute, the plaintiff filed his affidavit, setting forth that, “ on the 20th of March, 1844, he was the owner of the steamboat Mail; that, while the said boat was safely and prudently being navigated on the Ohio river, near Tiltonsville, the said steamboat Clipper carelessly, wrongfully and illegally ran into the said steamboat Mail, and thereby greatly damaged her, the said Mail, to the amount of two thousand dollars,” etc.

The writ and declaration both set the damages at six thousand dollars.

On the trial, it became important to ascertain whether the collision arose from the fault of the Clipper alone, or from the mismanagement of the Mail, or from the fault of both boats combined.

To this end the witness Haldeman was called, who testified that he had been an engineer and captain of a steamboat for ■sixteen or eighteen years, and had built several boats as proprietor ; that he was not present at the time the boat owned by the plaintiff, received the injury for which suit was brought, but that he saw the boat after she had been injured by a collision with the defendant, and his attention was called to the break or fracture produced by that collision. He was then asked, by the counsel for the plaintiff, the question to which exception is taken by counsel for plaintiff in error, in their first assignment:

From the breach or fracture in the injured boat, how, or in what direction the blow she received, appeared to have been given ?”

The witness answered that “ the blow appeared to have been given nearly head on — rather quartering.”

It is objected that this witness could only be asked “ to de-> scribe the breach or fracture,” and that the jury should have been left to form their own opinion whether the blow appeared to have been given nearly “ head on ” or not.

1 think the distinction attempted to be taken, is over nice.

It may easily be perceived how an experienced boatman could judge of the direction of the body in motion, that displaced a portion of the plank and timbers of the injured vessel, as a surgeon can tell from what quarter a blow has been aimed, that inflicts a wound upon the person ;■ but a mere description of the broken fragments, in the one case, or the lacerated integuments,-in the other, will seldom, if ever, enable a jury to say how the disturbing cause made its approach.

The truth is, you gain very little from the observation of the witness, in cases of this sort, if his opinion is to be entirely excluded from the jury. If he be confined, in his narration, to what he saw — the position of the broken timbers — the jury must necessarily be left in the dark as to the subject-matter sought to be elucidated.

The objection to the testimony of the witness Christy, is equally untenable. He stated that he had been and was the engineer of a steamboat; that he had seen the boat, injured by the collision for which the suit was brought, called the Mail, both before and after the collision; that she had been torn up after the injury; that, in her crippled condition, he considered her worth $8,000.

He was then asked to state the condition of the boat, and “ whether or not she was worth repairing, after the injury.” The witness stated the condition of the boat, and said “ she was not worth repairing.”

I see no impropriety in this course of examination. t

With the fullest description of the nature and extent of the injury, the triers of the case, farmers and mechanics, perhaps ignorant of such matters, would be liable to err in their estimate of damages, from a supposition that the wreck was susceptible of being repaired, and put to use for purposes of commerce.

The opinion of one conversant with steam navigation, and who had examined the shattered vessel, was necessary to instruct the minds of the jury and enable them to arrive at a correct conclusion upon that subject.

It is said these witnesses were not'" called to the stand a8 experts.” They seem to have been called for their familiar acquaintance with steamboats in general, and with the nature ■of the injury done to the “ Mail;” and that was the kind of information which they strove to impart to the jury — information derived from facts which they had seen and known, and from conclusions which their own experience enabled them to draw from such facts.

I see no objection to calling these men “ experts ” if the name will render *.their testimony more unexceptionable; but it is not true as a legal proposition, that no one but “ an expert ” can give an opinion to a jury.

Prom the very necessity of the case, testimony must occasionally be a compound of fact and opinion.

I do not know how I can better illustrate my meaning than by the use of the language of the court in McKee v. Nelson, (4 Cowan 356,) which was an action for the breach of a marriage promise. The witness, on the trial, had given his opinion that the plaintiff was sincerely attached to the defendant, and this was assigned for error. The court say, “ It is true as a general rule, that witnesses are not allowed to give their opinions to a jury, but there are exceptions, and we think this is •one of them. There are a thousand nameless things indicating the existence and degree of the tender passion which language ■cannot specify. The opinion of witnesses on this subject must be derived from a series of instances passing under their observation, which yet they never could detail to the jury.”

We do not-regard the question put by plaintiff to the witness White, referred to in the assignment, as objectionable. It appears that he was introduced as a witness to show that Staats, the man who had the helm of the Clipper at the time of the collision, was not a skillful pilot. On cross-exapaination he was asked by defendant’s counsel, “ if he ever knew of any accident to happen while Staats was at the wheel.” To this witness answered in the negative. The plaintiff’s counsel,, then, to rebut the effect of this last question and answer, put the question which is objected to in said third assignment.

“ You say in your answer to the cross-examination, you never heard of any difficulty which he (Staats) had. Did he ever steer alone his watch ? If so, how was the water, and did he or not, get into danger ?”

The witness replied, I fetched him one trip with me on the-Montezuma. I was up with him till we came below Marietta, the principal part of the time. After we got below there, I trusted him a little more .to himself — the water was better. Well, we had no trouble until we came down to Manchester. He came pretty near running over the Swiftsure, but he didn’t do any hurt,” etc.

The door was fairly opened for this question and answer, by the counsel for defendant, in the course taken on the cross-examination.

It is claimed that the judge of the superior court erred in his charge to the jury, in this, that he instructed the jury that “ if the danger of collision arose suddenly and by the fault of the defendants, the plaintiff is entitled to recover, even if he-did make a mistake, unless such mistake contributed to the injury and was such an one as pilots using ordinary care, skill, prudence and knowledge should not, under the circumstances, have made; and if any such mistake is set up in the defense, it is for the defendant to satisfy the jury that it was made.”

And again, that “ if the defendants claim that they were in. •the wrong, yet that the plaintiff was also in the wrong, and that therefore it is a case of mixed fault, it is for the defendant to show satisfactorily to the jury wherein the fault of the plaintiff lay.”

It must be borne in mind, that the court gave these instructions to the jury by request of counsel for plaintiff, but qualified in both instances by language like this:

“ It is incumbent on the plaintiff, in the first place, to show that he navigated skillfully, prudently and diligently. In other words, that he was without fault.”

I am at loss to know how the counsel for defendant below, •could take exceptions to this charge.

The jury were instructed by the judge, in terms, that the plaintiff must fjrst show that he was without fault — if, after this, there was any pretense set up by defendant that the plaintiff was in fault, it was incumbent on him to show satisfactorily to the jury wherein the fault of plaintiff lay.

This could not have misled the jury, and was as favorable to defendant as he had any right to claim under the circumstances.

As to the objection raised against a judgment upon the verdict : The bill of particulars is required to be filed and to specify the sum demanded by plaintiff, for two reasons: First. That the defendant may pay off the claim when process is served. Second. That if the claim be not paid, bond may be given in double the amount.

In the present case, the owners of the Clipper saw fit to contest the entire claim of plaintiff. They might have settled it at the commencement of the suit for two thousand dollars, the amount of damage which the plaintiff inserted in his affidavit.

It turns out, upon more mature investigation, that the plaintiff estimated his damages too low.

His counsel, however, have taken the precaution to set the •sum high enough in the writ and declaration.

The jury return in their verdict an assessment of the plain" tiff’s actual damage at the sum of $3,760.

But, they say further, if the damages are to be confined tc the bill of particulars, then we assess the same at $2,507; and leave the court to decide which sum the plaintiff is entitled to receive.

The court below decided that the plaintiff was not limited in his recovery, to the amount stated in his affidavit, and entered judgment for the actual damages returned by the jury. In this the court acted correctly.

The plaintiff cannot, in general, recover for other items than those stated in his bill of particulars; but he may prove a greater value on the trial than he has specified in his bill, and he is at liberty to recover according to his proof of value, if this does not exceed the amount laid in the declaration. But this is an action of trespass, and it would be extraordinary, indeed, if the plaintiff should set forth in his affidavit the actual amount of damages which a jury would assess in his behalf.

The truth is, an unliquidated claim in damage is of too indefinite a character to form what is technically called “ a bill of particulars.”

The plaintiff can only state within bounds what he may, at the time, be willing to receive as satisfaction for his injury. This will enable the defendant to settle the claim, and save costs. It will also aid in fixing the bond which is to be taken in double the amount, but it-will not have the effect to restrict the finding of the jury.

It is said that in this way the bail may be injured. Not so. The bail undertake for double the amount set forth in the bill of particulars, and to that extent will be held liable, but no further. If the plaintiff should recover ten thousand dollars, when he had stated but two thousand in his bill of particulars, the bail of defendant could be holden for no more than four thousand, or double the sum claimed to be due. We have looked through the whole case, and are satisfied that the court below very properly refused a new trial.

Judgment affirmed.  