Former decision modified and judgment reversed on rehearing March 23, 1915.
On Petition for Rehearing.
(147 Pac. 189.)
In Banc. Statement by Mr. Justice Burnett.
This is an action to recover damages resulting from a collision between the plaintiff’s minor son and ward *322and an automobile operated by the defendants. The defendants having appealed from an adverse judgment, the same was affirmed by department No. 2 of this court in an opinion reported in 145 Pac. 33. A rehearing was granted before the court in banc.
The plaintiff opens her complaint with this allegation:
“That the plaintiff, Mary Everart, is the mother of Clifford Everart, a minor of the age of 16 years, and resides with the plaintiff at her home in Multnomah County, Oregon, and that upon the filing of this complaint by order of the court the plaintiff, Mary Ever-art, was duly appointed guardian acl litem to said minor for the purpose of conducting this action.”
After averring the partnership of defendants, the complaint goes on to narrate the circumstances of the collision resulting in the injury in question. Among other elements of negligence, the plaintiff charges the defendants with operating their car at an excessive speed of at least 30 miles per hour. The answer denies all the allegations of the complaint except the partnership of defendants and the collision with the automobile, and alleges matter imputing to the minor contributory negligence. This, in turn, was traversed by the reply. Reversed on Rehearing.
Argued and submitted by Mr. Charles J. Schnabel and Mr. George Rossman, for appellants.
Argued and submitted by Mr. P. J. Bannon, for respondent.
Mr. Justice Burnettdelivered the opinion of the court.
9. Let it be conceded for the moment that the plaintiff in her capacity as guardian could maintain an ac*323tion for the injury described. Even then, in view of the issues raised by the answer, it became necessary for her to prove her conventional identity. She had to establish her disputed guardianship. It is said in Section 32, L. O. L.:
“When an infant is a party, he shall appear by guardian, who may be appointed by the court in which the action is brought, or by a judge thereof, or a county judge.”
It is further laid down in the following section:
“The guardian shall be appointed as follows: (1) When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of a relation or friend of the infant.”
As the only proof of the disputed allegation already quoted the plaintiff offered an order of the Circuit Court made upon the motion of the plaintiff herself for her own appointment as such guardian, and the court admitted it despite the objections of the defendants. The statute having prescribed the rule in such cases, it is incumbent upon the court to observe its mandates, and a guardian could not be legally appointed for a minor of the age of 16 years except upon his own motion. As said in Johns v. Marion County, 4 Or. 46, 49:
“Under the statute the court has no power over the subject until a petition of the prescribed character * * is presented, and it is necessary that the record should show affirmatively that jurisdiction has been thus acquired, or the proceeding cannot be sustained. ’ ’
The order of the court being the only evidence of the guardianship of plaintiff, she utterly failed to prove her disputed allegation on that point. In Goodale Lumber Co. v. Shaw, 41 Or. 544 (69 Pac. 546), the plaintiff corporation alleged its corporate existence in *324an action to recover on a promissory note. The defense considered in the opinion was the general issue, and the court there held that the articles of incorporation offered were not sufficient to prove the averment mentioned and that a nonsuit should have been granted: See, also, Porter v. Hannibal & St. Joseph R. R. Co., 60 Mo. 160.
10. Moreover, it is not a question of a plea of abatement. The issue is whether the conventional character who complains has any cause of action at all. The statute has said,in Section 27,L. O. L.,that “every action shall be prosecuted in the name of the real party in interest.” The plaintiff has no legal grievance against the defendants either in her maternal capacity or in her character as guardian. The cause of action, if any exists, is one in favor of the minor himself, and must be prosecuted in his name. The situation is analogous to one in which Brown would seek to enforce a cause of action existing in favor of Smith. The general issue would raise the question, and, upon the facts appearing as illustrated, judgment for the defendant would necessarily follow. A judgment for or against Mary Everart either as guardian or as mother of Clifford Everart would not bar any subsequent action in his name for the same injury.
11. Another assignment of error rests upon allowing a young lady witness named Lottie Hatfield to give her opinion about the speed of the automobile. She did not see the vehicle in motion nor appear upon the scene until some time after the accident had happened. She testified, in substance, that behind it and in the direction from which the automobile came she observed two black streaks upon the pavement; and, having said in answer to a question, “Well, I know pretty well about the speed,” she was asked if she would be able to ap*325proxifnate the speed of the ear from the marks it left in stopping. She answered affirmatively and proceeded to say, “I should judge from that about 30 miles an hour, by the depth of the burns. ” It is insisted that it was error to allow her to give her expert opinion upon the speed of the automobile from the data presented. Conceding that it was a matter calling for opinion evidence, the conditions were not adequate grounds upon which any expert could form an estimate. The mere marks upon the pavement did not constitute a sufficient basis for that kind of testimony. The ultimate object of the inquiry on that point was the speed of the vehicle. It is reasonable that, if a very heavily loaded car with wheels rough locked were propelled along a pavement at a very slow rate of speed, marks would be left behind. Again, the condition of the tires and of the street as to being rough or even would influence the question. Naturally a very smooth tire upon a very smooth surface, which, in turn, might be affected by a condition of dampness or frost, would result in but a faint marking. A variance in smoothness of either the tire or the pavement would produce different results. There was no testimony about any such conditions, or at least none of them were suggested to or mentioned by the witness. Consequently the foundation for expert testimony did not exist.
12. It is laid down in many cases that, where a person has an opportunity to observe the movement of any vehicle, he may give an opinion as to its speed at the time; it not being a matter of expert testimony. It is believed that the principles allowing a nonexpert witness to give an opinion may be thus stated: (1) The facts upon which he bases his opinion must be within the personal knowledge and observation of the witness; (2) they must consist of phenomena within the range of *326ordinary comprehension; and (3) the matter about which the opinion is given must be incapable of accurate reproduction or description before the jury. By virtue of this criterion, such witnesses are allowed to give their opinions as to the identity of persons and things, as to appearance of anger or pleasure in the countenance of the people they observe, and the like. The general rule is that witnesses must testify as to matters within their personal knowledge. Opinion evidence is in the nature of an exception to this precept. Rogers on Expert Testimony (2 ed.), Section 6, quotes from the case of Muldowney v. Illinois Central Ry. Co., 36 Iowa, 473, a succinct canon on the subject, as follows :
. “The opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, without such assistance; in other words, when it so far partakes of the nature of a science as to require a course of previous habit or study, in order to the attainment of a knowledge of it; and that the opinions of witnesses cannot be received, when the inquiry is into a subject matter, the nature of which is' not such as to require any particular habits or study, in order to qualify a man to understand it. * If the relations of facts and their probable results can be determined without especial skill or study, the facts themselves must be given in evidence, and the conclusions or inferences must be drawn by the jury. ’ ’
In Cook v. Stimson Mill Co., 41 Wash. 314 (83 Pac. 419), the court had under consideration an action for personal injuries suffered by the plaintiff in the wreck of a logging train, the speed of which was involved. The trial court had admitted the testimony of a brakeman and a fireman, each of about 2y2 years’ experience, *327who visited the scene of the wreck some time after it happened. It seems that the train was composed of cars loaded with logs, and the engineer in rounding a curve discovered some cattle on the track near at hand. Deeming it the best policy to run through them swiftly rather than undertake to stop, he speeded up the train, which left the track, resulting in the logs slipping forward and forcing the tender against the locomotive. Some of them also slid past the engine so far as to be even with the forward end. Based upon their observation of the situation as thus described, the witnesses gave an opinion about the speed of the train. Commenting upon this testimony, the court said:
“It seems to us that the foregoing testimony was incompetent and should have been excluded. It either requires no expert knowledge to enable one to draw an inference as to the rate of speed of a train from the conditions surrounding a wreck caused by it, or the witnesses in this case were not shown to possess such expert knowledge. In the former case, any inference to be drawn was for the jury alone, and the testimony would be incompetent. In the latter case, the witnesses themselves were incompetent, and their testimony should have been excluded. Furthermore, all the conditions attending upon the stopping of the trains were not known to the witnesses, nor were they embodied in the questions propounded to them. Whether an effort was made to stop the train, or whether it was thrown full speed ahead, and whether all the trucks left the track at the same time, would necessarily have an important bearing on the wreckage produced by the stoppage of the train; and yet these facts were wholly unknown to the witnesses and were not taken into consideration by them in forming the expert opinion. The question here involved was not the rate of speed of a train which a witness sees in motion, and has an opportunity to observe, nor the distance in which a train may be stopped under ordinary conditions, nor any other *328question relating to the ordinary operation of trains, or the duties of trainmen, with which railroad men are presumed to he familiar. The conditions were abnormal and unusual, and it certainly cannot be said that a few months’ experience around a logging camp, or a couple of years’ experience in braking or firing of itself, qualifies one to express an opinion in such a case. If expert testimony is competent at all to establish the rate of speed in a case like this, such testimony must come from witnesses whose knowledge is derived from the observance of similar wrecks under similar circumstances, where the witnesses are familiar with the causes which produced them. ’ ’
The court reviewed the authorities at some length and reversed the case on the error arising from admitting the opinion of witnesses. In so doing it quotes with approval from Briggs v. Minneapolis St. Ry. Co., 52 Minn. 36 (53 N. W. 1019), the following language:
“Courts have gone far enough in subjecting life, liberty and property to the mere speculative opinions of men claiming to be experts, and we are not disposed to extend the rule into the field of mere hypothetical conjecture, which, in a case like the present, must necessarily have been so uncertain and unreliable as to be purely conjectural, and utterly unsafe for either court or jury to adopt.”
Mr. Justice Bean, in State v. Barrett, 33 Or. 194, 195 (54 Pac. 807, 808), uses this language:
“As a general rule, a witness must testify to facts, and not conclusions or opinions. It is the duty of the jury, and not the witness, to draw inferences from the evidence, and form opinions from the facts presented. The cases in which the opinions of the witnesses are allowed constitute exceptions to this rule, founded on the ground of necessity, because the facts cannot be presented or depicted to the jury precisely as they appeared to the witness, and it is impracticable, from the nature of the subject, for him to relate the facts with*329out supplementing their description with his conclusions: First National Bank v. Fire Assn, 33 Or. 172 (50 Pac. 568, 53 Pac. 8). Such are questions as to the identity of persons or things; the age, health, physical condition, and appearance of a person; the lapse of time; the dimensions and quantities of things; and many other instances in which it is impossible to detail the facts without the use of language which necessarily implies the conclusion or opinion of the witness. [Citing authorities.] But the books all agree that such opinion evidence is never admissible if all the pertinent facts can be sufficiently described and detailed to the jury so as to enable it to draw its own inferences and conclusions therefrom. ’ ’
The doctrine of State v. Jennings, 48 Or. 483 (87 Pac. 524, 89 Pac. 421), is to the effect that, where the facts observed by the witness can be accurately stated to a jury, the evidence should be limited to such a recital, and the witness should not be permitted to state his deductions from such facts. In Mott v. Detroit etc. Ry. Co., 120 Mich. 127 (79 N. W. 3), it is held in purport: The fact that one has observed bodies move and in motion a good many times, and has seen horses trot and run, does not show that he has had sufficient experience to give his opinion as to the rate of speed a hand-car was going when a collision occurred between it and a buggy, where he heard the car approach, but did not see it. In Wright v. Crane, 142 Mich. 508 (106 N. W. 71), the rule is thus in substance stated: A witness who testifies that an automobile approaching in the dark made no noise heard by him, that when running at a high rate of speed it makes but little noise, and that when running at a low rate of speed it makes much noise, is not competent to estimate the speed of the vehicle. In Williams v. Kansas City etc. R. Co., 96 Mo. 275 (9 S. W. 573), the question was about the speed of a train which *330collided with other ears. A witness who heard the noise of the collision gave his opinion as to the speed of the train. The court says:
‘ ‘ This witness appears to have been at his stable at the time of the accident, and the only inference from his evidence is that he dad not see the ears when they came together. He heard the jam, and from that alone makes his estimate of the rate of speed. # # Whilst the rate of speed of an engine or car may be shown by the opinion of witnesses who saw the engine or car in motion, still such evidence seems to be admitted on the ground that the estimate involves the consideration of many circumstances which cannot be accurately or fully detailed. Hence the conclusion drawn by the witness from the circumstances is admitted. It is but the opinion of the witness. Such an opinion formed by a nonexpert solely from hearing the jam of the cars is of no value, and we conclude entitled to no consideration. The witness, if not an expert, ought to have before his mind and eye something more than the noise made by the jam of the cars to entitle his opinion of the rate of speed of the cars to any consideration.”
It was laid down substantially in Campbell v. St. Louis & Suburban Ry. Co., 175 Mo. 161 (75 S. W. 86), that, on the mere showing that a person had for 20 years the common experience of a city man traveling on street-cars, he was not competent to give an opinion as to the speed of a car, based on the noise heard at a distance of more than 120 feet.
13. In this case the. witness Lottie Hatfield, as stated, did not see the car in motion nor witness the accident. The only circumstance upon which she bases her opinion is the existence of two black streaks on the pavement — something which is a common occurence in any city where automobiles are used. In our judgment it was not a matter for opinion or expert evidence because it did not involve anything of science or tech*331nical learning. The jury was quite as competent to judge of the speed of the car from that circumstance as a young girl who has not shown herself to be particularly skilled in the use or observation of motor vehicles. In brief, if she had seen the car in motion at the time of the accident, she could have given her opinion as a lay witness about its rate of speed. As her testimony on that point, however, involved a deduction from the circumstantial evidence of tracks, it was not for her, but for the jury alone, to make that or any deduction. Moreover, if it could be considered a matter authorizing opinion evidence, there was not sufficient data disclosed by the testimony to authorize an opinion from even the most learned on such subjects.
These considerations lead to a recession from the former opinion and a reversal of the judgment of the court below.
Formes Opinion Set Aside. Reversed.