
    John H. Harris, Plaintiff and Respondent, v. The Panama Railroad Company, Defendants and Appellants.
    1. In an action against a common carrier to recover the value of a horse, alleged to have been fatally injured through the negligence of the carrier during its transportation by him, although the evidence in respect to its value be conflicting and proper to be submitted to the jury, yet their verdict will be set aside as excessive in amount, if the verdict be for a sum" which, in the opinion of the Court, is clearly much larger than is warranted by the evidence.
    2. It is the duty of counsel, when objecting to a question, if he states the ground of objection, (as he may properly be required to do,) to state an objection which is well founded, otherwise bis exception to the decision of the Court which overrules his objection and admits the evidence, will not avail him as an exception.
    S. Hence, when, on the trial of an action, a question is put to a witness, and it is objected to on a specific ground, which is properly overruled, and the objecting party excepts, that exception will be unavailing, and will furnish no reason for relieving the party from paying costs as a condition of obtaining a new trial, although the Court are of opinion that upon other grounds not suggested on the trial, the evidence was inadmissible.
    4. The Court may, nevertheless, if satisfied that injustice has been done, and / that the jury may probably have been improperly influenced by the objectionable evidence, make that one of the considerations inducing them to grant a new trial on a case.
    (Before Hoffman, Woodruff and Pierrepont, X X)
    Heard, May 12th;
    decided, October 29th, 1859.
    ; Appeal by the defendants from a judgment against them for $5,000 damages and costs, on the verdict of a jury, and from an order refusing a new trial.
    The action was brought to recover the value of a horse, and was once tried in May, 1857, and, on appeal from the judgment for the plaintiff on the verdict for $2,500, then rendered, the judgment was reversed and a new trial was ordered. (See report of the case and points decided, 8 Bosw. R., 7.)
    ' The case came on again to be tried before Bosworth, Ch. J., ánd a jury, in November, 1858, when the plaintiff again had a verdict, and the jury assessed his damages at $5,000.
    The nature of the action, the evidence given, and the proceedings had at the trial, so far as they affect the merits of the present appeal, or are material to the points decided by the General, Term, are stated in the opinions.
    
      jD. B. Baton, for defendants, (appellants.)
    
      D. D. Field, for plaintiff, (respondent.)
   By the Court—Pierrepont, J.

Appeal from a judgment entered upon the verdict of a jury.

The action was brought to recover the value of a horse alleged to have been killed by the defendants’ negligence while in transit on their railroad. The jury were properly instructed, that if the horse was killed by injuries received on the defendants’ road, the Company were liable, and that the measure of damage would be the value of the horse at Panama. Under these instructions the jury found a verdict for the plaintiff of $5,000. We are satisfied that the amount of the verdict was not warranted by the evidence.

This horse was purchased in the State of Indiana for $700, and was soon after shipped for California, and died on the way. He was put on board the steamer George Law, bound for Aspinwall, on the 4th or 5th of April, 1855, and was soon after found to be out of condition. When he reached Aspinwall, in the course of that month, he was sickly, and so weak as to be scarcely able to walk without aid. From the evidence there is much reason to suspect that the horse died of disease not caused by the alleged injury.

It is quite clear that the evidence, under the law as charged by the Judge, did not warrant a verdict of $5,000. The jury were instructed that if no such horse had been bought or sold in Panama, “ in determining his fair actual value at that place they might take into consideration evidence of his actual value at San Francisco, if the evidence satisfied them that he had a certain market value there; but that they must take into consideration the risks and hazards of transportation and the expenses of transportation from Panama to San Francisco.”

According to the testimony of Weed, Nelson and Keyser, witnesses for the defendants, the value of the horse at Panama could not have been over $900. One of the plaintiff’s witnesses says that if the horse had been sound and well, his value in San Francisco would have been $5,000.

The other of the plaintiff’s witnesses says, if sound and well he would have been worth in San Francisco $3,000 and upwards. Austin, the only other witness examined on the part of the plaintiff as to value, was asked the following questions:

Q. What was the highest price—being the fair market price —which you have ever known to be paid for a horse in- San Francisco ?”

■ Question objected to by counsel for defendants, because it is not an inquiry of the market value of a witness knowing.it at the time. The objection was overruled; to which ruling the defendants’ counsel then duly excepted.

A. I think it was $9,000.”

It was a trotting horse. The injured horse was a running horse.

Q. What was the market value of the injured horse in San Francisco ?”

A. I would not know the market value in San Francisco.”

This question was pressed against the defendants’ objection, for the obvious purpose of increasing the verdict.

The witness says that he did not know the value of this horse at San Francisco. The only legitimate inquiry was his value at Panama, or his value at San Francisco in order to ascertain his valúe at Panama at the date of the alleged accident; the witness having no knowledge of the value of such a horse as this at San Francisco, states to the jury the highest price that he has ever known to be paid for a horse in San Francisco, which he thinks was $9,000.

This evidence would naturally tend to swell the verdict, and we think it clearly irrelevant to the issue. But the question before us is, whether there is any error of law raised by the exception.

If no objection is made to an improper question, admission of the answer is not error.

If objection is interposed on some specific ground alone, and the question is not objectionable on that ground, it is not error to overrule the objection.

For example, in the progress of a trial a copy of a paper is offered in evidence after due proof of loss of the original. It is objected to on the specific ground that it is a copy, and the objection is overruled, and the copy is read to the jury. When the case comes up for review on the exception it appears that the paper itself, whether original or copy, is wholly irrelevant; yet such exception could not be sustained. The attention of the Court being called to' one specific objection which is not well taken it is not error to overrule it. So in the present case the question was objectionable. But the objection being placed upon one specific ground alone, which alleged ground had no sufficient foundation, it was not error to overrule it.

But in our opinion the verdict is larger than the evidence warrants in any legal view of the case, and for that reason a new trial must be .granted, the defendants to pay the costs of the last trial; all other costs to abide the event.

Woodruff, J.

I concur in the conclusion to which my brethren have arrived, that the damages found by the jury are excessive and not sustained by the evidence. The observations of Mr. Justice Pierrepont do not, however, fully express my views of the evidence to which he has adverted and which he regards as irrelevant.

It seems to me that irrelevancy is not a just ground of objection to evidence which, when received, “ would naturally tend to swell the verdict.” If the natural tendency of the evidence would be to swell the verdict, it must be because it would naturally tend to induce the belief that the plaintiff’s loss—i. e., the value of his horse—was greater than without such testimony the jury would have believed. It is true, that testimony may be irrelevant to the issue and yet operate to excite an undue prejudice against the defendant, and so incline a jury under the influence of passion to give exaggerated damages when the damages are, in a degree, in their discretion.

But here the inquiry was respecting the value of the injured horse, and to that end what was his market value in San Francisco. Now, if evidence that a horse was sold there for $9,000, in connection with testimony previously given, tending to show that the horse in question was as good or better than any horse there, would naturally tend to induce the belief that the plaintiff's horse would have produced that sum, and so naturally tend to swell the verdict; it does not seem to me that the true ground of' objection is that it is irrelevant.

By this I do not mean to be understood as regarding the question as admissible. The witness had been in California several times from 1849.down to and including 1855. He had testified' to his knowledge of the horse market there. That he knew of sales of horses in San Francisco in 1855 and before that, and that he knew the value of horses in San Francisco. He had further testified to his acquaintance with the particular horse in question; his passage to Aspinwall on the same vessel, and his repeated examinations of the horse. The proper question, to be put to the witness was, what in his judgment was the market value of the horse in question in San Francisco, if the value in that market was admissible, as was decided when this case was before the General Term on a former occasion. The inquiry into particular sales is not a competent line of inquiry to prove market value. Such an inquiry may be proper on a cross-examination, to test the accuracy of the witness’ opinion and the grounds upon which it rests. On proof of the value of a horse, the testimony is necessarily and properly the opinion of competent men, familiar with the market, and the fair market value is what the horse will bring if offered for sale; and this is to be answered, not by proving the details which go to make up the experience of men of judgment and skill, but by requiring the witness to state his opinion as the result of the knowledge and experience he has had. What a particular horse sold for is not, therefore, a competent inquiry. It would lead to an endeavor to institute comparisons when comparisons would be dangerous, else it would involve the trial of the value of each horse and the inquiry into the particular circumstances of each sale to see whether the instance named was a fair example of the state of the market, or was a fanciful or exaggerated price obtained for peculiar reasons. And the rule is the same if the attempt were to depreciate; it is not competent to show that a sale was made for a merely nominal price, or that a useful horse was given away because a purchaser could not be found at the particular time when the owner desired, to dispose of him. One man may give his horse away, or sell him for a small sum, another may give a greatly exaggerated or fanciful price for a horse that is owned by one not desiring to sell, but who is tempted by the very eagerness of the buyer to part with him for a sum greatly exceeding his value measured by a just standard. So that the only just mode of arriving at the market value is by taking the judgment of those who, from knowledge of the state of the market and the current price of the like property, embracing also a knowledge of the particular horse in question, can form an opinion of his value. If, therefore, the objection taken to the testimony had called the attention of the Court to the objections now suggested, I cannot doubt the question would have been excluded; if not, the exception would, I think, have been well taken. The correctness of this view of the competency of the question is admirably illustrated by the answer of the witness to the subsequent questions. “ The horse sold was a trotting horse; the injured horse was a running horse,” and being asked the very question counsel had endeavored to prove him competent to answer, “what was the market value of the injured horse in San Francisco? ” he says, “I would not know the market value in San Francisco.” Thus illustrating that although the witness knew what many horses had sold for at that place, and especially knew of one sale for $9,000, yet he could not judge of the value of the horse in question. If the witness could not, surety the jury ought not to be permitted to draw any inference touching the value of the horse in question from the fact of such a sale.

The objection, however, which the counsel did make to the question was groundless, and viewing the ruling of the court as merely passing upon the objection urged, and not as deciding generally upon the admissibility of the evidence, it was property overruled.

The objection was that the inquiry was not of a witness knowing the market value at the time—i. e., at the time when the horse was injured and died. But the witness did know as much of the market value then as he ever did ; he had testified that from 1849 to 1855, he was there several times; that he knew of sales in 1855 and before that; used horses all the time he was -there, and he thought he knew the market value. He went out •by the same ship that took the horse in question from New York, and went directly to San Francisco. Hero was prima facie evidence.of Ms competency to give an opinion, and his experience and knowledge came down to the very time which was to be adopted in determining the value, viz., the season when the horse was injured. True, he afterwards showed he had not sufficient knowledge to enable him to state the market value of the horse in question, but at the time of the inquiry he had shown himself prima facie acquainted writh the value at that time.

The objection made was therefore properly overruled; yet I am of opinion that the evidence was liable to the objections I have stated. If by the term irrelevant is meant that it ought not to be permitted to influence the determination of a jury nor enter into their deliberation because it does not, in judgment of law, furnish any safe guide to the determination of the question before them, then it may be called irrelevant.

Although the exception taken does not make the granting of a new trial a matter of right for the reasons above assigned, still the admission of the evidence and its objectionable character may properly be taken into view by the Court, on a motion for a new trial. The Court regard the damages as excessive, and on examination to see whether the estimate put by the jury upon the horse is the apparent result of an honest deliberation upon conflicting evidence, with nothing in the case producing an improper influence upon their minds, we find evidence received to prove that some other horse was sold for $9,000, and can see that, it being received in spite of an objection, (though a groundless one,) the jury may well have regarded the ruling of the Court as an intimation that such evidence was proper to be taken into view in estimating the value of the horse in question. Where injustice is apparently done, the admission of improper evidence which might have influenced the jury, may be regarded by the Court on a motion for a new trial, although the objecting party has not, by the form of his objection and exception,, placed himself in a situation to demand a new trial as matter of right.

I have never fully appreciated the justice of a rule which requires the party, in whose favor a new trial is ordered, to pay the costs if the error be deemed the error of the j ury • but I suppose it to be too well settled to be at present disregarded.

New trial ordered,, on payment of costs of former trial. The subsequent costs to abide the event..  