the facts. Nor where the opinion necessarily degenerates into mere conjecture. So, in an action for negligently injuring and sinking a canal-boat, a boatman who knew the boat in question previous to her being injured, and swore that he had raised sunken boats and repaired them, cannot testify as to his opinion of what the damages would be, from the description of the situation of the boat by the witnesses. (2)

In an action on the case against a railroad company for injury to the person of a passenger through the negligence of the company, evidence of loss sustained by the plaintiff in his business in consequence of the injury received, is proper to aid the jury in estimating the plaintiff's damages; and for that purpose the nature of the plaintiff's business, its extent, and the importance of his personal oversight and superintendence in conducting it, may be shown; but the opinions of witnesses as to the amount of loss are inadmissible. ()

A party in the city of New York, whose property is destroyed by the order of the city officers to stop the spread of a conflagration, is entitled to an allowance to the full value of the property destroyed, without any deduction for the amount insured and interest on it; but the opinions of bystanders, that the

buildings destroyed would have been consumed by the fire [592] if they had not been blown up, are inadmissible. It was, however, suggested that perhaps the opinion of firemen and others, having particular knowledge and experience with reference to fires, might be received. (k)

Another exception to the rule which excludes mere opinion, is that which permits testimony to be offered as to the value. (1) Witnesses familiar with the article in question are permitted to state their opinion as to its value, (7)—and that in its actual or in an assumed and hypothetical state. And so as to the value of services. (m) (2) So, in an action for a nuisance, an architect, acquainted with the locality, may be asked if the nuisance depreciated the value of the houses in the neighborhood. (n)

(i) Paige v. Hazard, 5 Hill, 603. (j) Lincoln v. Saratoga & Sch'y R. R. Co., 23 Wend., 425.

(k) The Mayor v. Pentz, 24 Wend., 668.

(1) Joy v. Hopkins, 5 Denio, 84. (m) Brill v. Flagler, 23 Wend., 354. (n) Gauntlett v. Witworth, 2 Car. & Kir., 720.

(1) See Clark v. Baird, 5 Seld. (N. Y.), 183, where the cases on this subject are thoroughly examined. But compare, Main v. Gordon, 12 Ark., 651.

(2) Lewis v. Trickey, 20 Barb. (N. Y.), 387.

The question of damages is often governed by the doctrine of presumptions; for it is to be borne in mind that in this branch of our science, as in every other, we are frequently without any clear or conclusive evidence; and in these cases resort is often had to testimony of an inferior character. Such are the presumptions which arise from a given state of facts, where the cause or the amount of the injury is not absolutely certain. (0) In these cases the matter is decided on the probability growing out of the presumption. Presumptions are sometimes absolute and not to be rebutted by any proof; in other cases they only rise to the force of prima-facie evidence, and may be met and contradicted like any other testimony. So, where the plaintiff shows himself to have sustained damage resulting from the act of the defendant, which act with proper care does not ordinarily produce damage, he makes out a prima-facie case of negligence, which cannot be repelled but by proof of care, or some extraordinary accident which makes care useless. (p) So, in case against a railway company, for setting fire to premises adjoining their line, the fact of premises being fired by sparks emitted from a passing engine is primâ facie evidence of negligence on the part of the company, rendering it incumbent on them to prove that precautions had been adopted reasonably calculated to prevent such accidents. (7)

So, again, the acts of the parties themselves may determine the value of the thing in controversy, (1) and operate like an absolute liquidation of damages. So, in an action on an agreement in which the defendant acknowledged that he had received of the plaintiff certain enumerated goods, attached by the plain

tiff as a deputy sheriff, estimated at fifteen hundred dollars, [593] and which the defendant promised to keep safely and

deliver to the plaintiff on demand,-it was held that the defendant could not give evidence that the goods were of less

(0) Bishop Butler, in his Introduction to his Analogy, has some admirable passages, on the nature and force of presumptions and the absolute necessity in many cases of acting on them. "To us," he says, "probability is the very guide of life."

(p) Ellis v. Ports, & Roan. R. R. Co., 2 Ired, 138; Herring v. Wilmington & Raleigh R. R. Co., 10 Ired., 402.

(9) Pigott v. Eastern Counties Railway, 2 Man, Gr. & Scott, 229.

(1) Huson v. Chastine, 3 Jones (N. C.) L., 550.

value than the specified sum, but that the valuation in the receipt was conclusive. (r)

We have seen that in regard to contractors for public works, who are in certain cases allowed their profits, the sub-contracts made by them are not evidence to show what those profits would have been, (1) but they are required to go into a minute investigation as to the cost of materials, the expense of delivery, the amount and value of labor; and even with all these, it has been said that the estimate of profits must be conjectural. (8)

The application of the rules which we have thus examined, in regard to the proof necessary to establish a claim for damages, often renders it difficult if not impossible to arrive with precise accuracy at the object of the inquiry. But justice is after all but an approximate science, and its ends are not to be defeated by a failure of strict and mathematical proof. The following language of Mr. Justice Story is full of good sense, and susceptible of frequent and wide application:

"It is said, that it is difficult, and indeed impracticable, to ascertain the true and exact value of the property in this case. There may be difficulty, and perhaps an impossibility, to ascertain its exact and minute value, for we have no means of weighing it in scales, or fixing its positive price. But the same difficulty occurs in many other cases of insurance,—as in cases of injuries to sails or rigging, or spars, by tempest, or by cutting them away in cases of jettison; and yet, no one doubts that they must be contributed for according to their value. ascertained by a jury in the exercise of a sound discretion, upon proper evidence, Suppose that fruit is insured, and the vessel has a long passage, in which, by ordinary waste and decay, it must suffer some deterioration, and then a storm occurs, in which it suffers other positive damage and injury, or there is a jettison thereof; how are we to ascertain what diminution is to be attributed to natural waste and decay, and what to the perils of the seas? or what was its true value at the time of the jettison? There can be no positive and absolute certainty. The most that can be done is to ascertain, by the exercise of a sound judgment, what, under all the circumstances, may reasonably be attributed to one cause, and what to the other. Absolute certainty, in cases of this sort, is unattainable. All that we can arrive at is an approximation thereto; and yet, no man ever doubted that such a loss must be paid for if it is covered by the policy." (t)

(r) Jones v. Richardson, 10 Met., 481.

(t) Rogers v. Mechanics' Ins. Co., 1

(s) Masterton v. Mayor of Brooklyn, 7 Story, 300. Hill, 62; Seaton v. Second Municipality,

3 La. R., 45.

(1) Story v. The New York & New Haven Railroad Co., 1 Seld. (N. Y.), 85.

CHAPTER XXVI.

POWER OF THE COURT OVER THE SUBJECT OF DAMAGES.

Respective powers of court and jury over the subject of damages-General division of their functions-The Roman system in this respect-Curious analogies between it and the English system-General rule with us is, that the court decides questions of law, and the jury questions of fact-Exceptions-Verdicts against the weight of testimony-Setting aside verdicts on account of excessiveness of damages Power of the court exercised with hesitation and reluctance-Measure of damages a question of law.

WE have thus stated the general principles which control the subject of compensation,-when redress is governed by strict rules of law, and when the matter is said to be left to the discretion of the jury.

An important branch of the subject, however, still remains. As the final decision of every case involving an issue of fact, is pronounced by the jury in giving their verdict, and as that verdict also expresses the amount of compensation which the party in fault is to make, it is plain that unless the court retain to itself some control over the action of the jury, their power over the subject of remuneration would be practically unlimited. We have, then, yet to see what remedy is provided if the jury disre gard the rules laid down for their government; and this necessarily brings us to a consideration of the relative powers of the judge and the juror.

One of the most marked peculiarities of the Anglo-American system of jurisprudence, perhaps its most striking feature, is that division of power by which the decisions of questions of law is

given to the court, and that of questions of fact to the jury. It is an error to suppose that this division is altogether peculiar to our system, or that it is exclusively of English origin. The recent labors of the German scholars, assisted by the discovery [595] of Gaius, in 1816, have disclosed the true nature of the procedure by the formula in the republican period of the Roman jurisprudence; and the analogies that it furnishes on the present branch of our subject, are too striking to be overlooked.

The despotism of Augustus and his successors introduced changes into the administration of justice analogous to those which it wrought in the general frame-work of the imperial government. Its peculiar characteristics were centralization and despotism; it established in all branches of the system a gradation of ranks, deriving their existence from and dependent upon the will of the emperor alone, and it destroyed every vestige of popular action. The first and most important of these changes in the machinery of the law, was, by abolishing the judices or jurors, to make the judges absolute masters of the whole cause, subject only to the right of appeal; which, in all cases I think, might carry the suitor before the Cæsar himself; and this led directly to the adoption of written and secret instead of oral and public discussion. Thus was produced the system which in its general outline, ruled continental Europe almost exclusively till the adoption of the Code Napoleon.

But the plan on which justice was administered at Rome in the time of Cicero, perhaps the most truly great period of its development, was very different. The Romans during their republican epoch were too jealous of power to give to the judiciary an uncontrolled authority over questions both of law and fact. The judicial functions were divided, as with us, by an analogous, and in some cases by an identical line. The suit was instituted before a magistrate, usually the prætor; and the proceedings before him were termed in jure. Here the cause of action was stated, the defense set up, and the issue whether of law or of fact formed. In other words, the pleadings were put in. To this issue was then joined the instructions proper for its trial, and the issue and instructions together were termed the formula. A judex or referee was then appointed. This was called datio judicis. The cause was then turned over to him; and he decided the question submitted to him, according to the instructions contained in the formula. The proceedings before him were termed in judicio.