
    No. 532
    NUSSBAUM v. ATLAS LAUNDRY CO.
    U. S. Appeals, 6th Circuit
    No. 4402.
    Decided Jan. 5, 1926.
    480. EVIDENCE.: — Person of ordinary intelligence is presumed competent to express an opinion as to the speed of automobile, and the exclusion of testimony on the ground that witness did not have exceptinal ability to estimate speed, is prejudicial error.
    Attorneys — William Thomdyke and Albert D. Alcorn for Nussbaum; Ben B. Nelson for Company; all of Cincinnati.
   MOORMAN, C. J.

Abraham Nussbaum sued for damages, in the District Court by reason of his being injured by a truck of the Atlas Laundry Co. Damages were denied him. Error was prosecuted because the lower court refused to admit evidence of the truck’s speed at the time of the accident, from one of the two witnesses offered by Nussbaum. It was claimed that the court erred in failing to specifically charge the jury what rate of speed was presumptively reasonable, under a state statute.

The Circuit Court held:

1. The witness Viner was not permitted to testify as to the speed of the truck for the reason that he had not been shown to possess exceptional ability to estimate the speed of the automobile, through common knowledge gained from experience.
2. This ruling is wrong, for it would be contrary to common experience to assume that Viner had not had abundant opportunity of observing the movement of autombiles.
3. Any person of ordinary intelligence, from his experience in the ordinary affairs of life is competent, with special qualification, to express an opinion as to the speed of a moving automobile.
4. Since there were but two witnesses to the speed of the truck, Viner’s testimony could not have been merely cumulative; but must be regarded as highly important in view of meager evidence on this point.
5. Under a state statute any rate of speed greater than 15 miles an hour in business and closely built up portions of a city is presumptive evidence of a rate greater than is reasonable.
6. Since the accident occured in closely built up portion of the city, the request that the jury be so instructed was material because of different rates aplicable in different portions of a city.

Judgment reversed.  