dissenting.
In my view the action of the learned trial court in permitting the patrolman to give the jury his opinion, or conclusion, as to what caused the wreck and injury was reversible error, for these, and other conceivable, reasons:
1. Aside from that action, the affirmance or reversal of this ease is a close questibn. The admission of other evidence over objection of defendant; denial of the application for continuance; the size of the verdict; the granting to plaintiff of certain doubtful instructions, all as disclosed in the able majority opinion, demonstrate, I think, the accuracy of the foregoing statement. That fact cautions care in holding the scales of justice balanced in the admission of this opinion evidence.
2. The testimony was admitted on the assumption the witness was an expert. He was asked this question by counsel for plaintiff: ‘ ‘ Just state one at a time, very carefully and slowly, each of the physical marks which you noted on that particular occasion, and what conclusion you drew from each of those marks as to how the accident in question occurred?” Counsel for appellant objected on the specific ground “That’s a conclusion. ’ ’ Counsel for plaintiff replied ‘ ‘ He’s an expert; that’s the only way.” Counsel for appellant then stated “You have not qualified him as an expert.” The court then said “I think they are admissible in evidence.” These quotations show conclusively the testimony was admitted on the theory this witness was an expert. Now, that was incorrect for two reasons: The first is there was not a line of testimony that this witness was, or claimed to be, an expert on the collision of vehicles, and the second is that this was not a subject for expert testimony even had the witness tried to qualify as such. “Such testimony cannot be received either to prove or disprove those things which are supposed to lie within the common knowledge, experience, and education of *516men.” 20 Am. Jur. pg. 651, Sec. 781. Here was a set of simple facts and a conclusion to be drawn therefrom. The simple facts were that on the side of the trailer there was a small indenture about twice the size of a silver dollar, according to pictures in the record, which indenture contained a blue substance, and the Chevrolet car was painted blue. Question — Did this prove trailer struck the Chevrolet car, causing the wreck? Any man on the jury, qualified to serve, was just as capable of drawing that conclusion as was the patrolman. But the patrolman assumed the functions of the jury. He gave his conclusion and his inference. The jurors understood he was testifying as an expert. Naturally the words of these men, whose duty it is to patrol the highways and examine into automobile collisions, go far with the ordinary juror. It should be remembered that this indenture was not discovered until sometime after the wreck occurred. There is no proof it was not on the trailer before the wreck. No chemical analysis was made of the substance and the paint to determine whether they were the same.
3. This was not a complicated situation where difficulty existed in separating the facts from the conclusion. All that was needed was to confine the witness to a statement of what he saw. It was not necessary for him to invade the province of the jury.
4. Whether the trailer hit the Chevrolet was the determinative question in the case. As tersely stated in the majority opinion, “Indeed, if the trailer did not strike the Chevrolet, then appellee has no case against appellant.” That was the law suit. The truck driver swore the trailer did not hit the Chevrolet. The driver of the ambulance did not know. Mr. Barbarin said he did not know. He said something struck his car; he did not know what. Mr. Sample, driver of the Packard, was not at the trial. Prom his statement he did not know. So that, as stated, the crucial question was whether that did happen. It was natural that the in*517ference drawn by tbe patrolman bore heavily upon the jury in reaching its verdict. With this precedent it is difficult to see how opinion evidence of non-experts is to be excluded in future trials.