The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 389
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OMAHA & C. B. ST. RY. CO. V. MIKEEMAN 389
[3] Mr. Keller, who was the driver of the automobile, when giving
his testimony in chief was asked the question: "What do you estimate
the speed" (of the car)? The witness answered: "My judgment is
that it was going very fast, I should judge 35 miles an hour." This
question was objected to by counsel for defendant as incompetent,
and that there had been no foundation laid. The objection was over-
ruled, and this ruling of the court is assigned as error. At the time this
ruling was made, it was a fair inference that the witness had seen
the car moving, as he was in charge of the automobile. Subsequently,
however, on cross-examination the witness testified that he had not
seen the car. When this fact appeared, counsel for the defendant
moved that the testimony of the witness in regard to the speed of the
car be stricken from the record. The court overruled this motion, but
this ruling of the court is not assigned as error. Moreover, it did ap-
pear from the testimony of Keller that he must have seen the street car
because as he testified he was making an effort to turn his car so as
to avoid a collision, but that the street car was going so fast that he
could not make the turn. We think the estimate of the witness as to
the speed of the car was properly left to the jury.
This court, in United States Smelting Co. v. Parry, 166 Fed. 407,
92 C. C. A. 159, in an opinion by Judge Van Devanter, now Justice
Van Devanter, decided that a certain discretion is accorded the trial
judge in respect of the admission or rejection of expert and opinion
testimony, and his decision admitting testimony of that character ought
not to be disturbed unless it plainly appears that the testimony was not
calculated to aid the jury in reaching a correct conclusion and was cal-
culated to prejudice their minds. A large number of cases are cited in
the case referred to in support of the rule stated.
The admission of the following testimony by the witness Joseph
F. Perry is assigned as error:
"Q. How fast would you say this street car was running when you first
saw it? A. I should judge it was going 25 miles an hour."
This question was objected to by counsel for defendant as incompe-
tent, immaterial, and irrelevant, and no sufficient foundation laid. The
principal objection to the question was that Perry was not basing his
opinion entirely upon a conclusion as to the speed of the car formed
at the instant he saw it, but in part upon reflection and measurements
made afterwards. The witness testified that, when he first saw the
street car, it was about 96 feet north of the middle of the intersection
of Harmony and Benton streets. He also testified that he had observed
railroad trains and street cars as to their speed and testified that he
was able to give an opinion as to the speed of the street car. We do
not think there was error in allowing the witness to answer the ques-
tion, leaving the weight to be given the same to the jury after full
cross-examination upon the subject. Lorenzen v. United Rys. Co., 249
Mo. 182, 155 S. W. 30.
[4] Assignment of error No. 10 complains of a charge given by the
court to the jury defining the duty of the motorman. An examina-
tion of the record does not show that this charge of the court was
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/404/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.