99 Tenn. 303 | Tenn. | 1897
The defendant in error was an employe of the plaintiffs in error, and while engaged in the performance of a duty to his employers was frightfully injured, by the fall of a freight and passenger elevator in the storehouse of plaintiffs in error. At the time of the accident, the defendant in error was on the elevator, and the fall was occasioned by the sudden breaking of the two wire cables by which it was suspended. To recover dam-' ages for the injury thus sustained, this action was brought.
In his declaration, the plaintiff alleged that the elevator was "so carelessly and negligently constructed and maintained, that the cables suspending it had been thirteen years in use, and were old and rusted, and that the wooden guides attached were so worn and rotten, and the safety appliance, intended to prevent a fall, was so- defective and out of repair,” that while the plaintiff was riding on it, and discharging a duty in obedience to the orders of his employers, the cables, together with the safety catches and other appliances, broke, and the elevator fell a distance of five stories to the basement floor beneath, carrying plaintiff with it, and inflicting the injuries complained of.
It was further alleged that these injuries resulted from the flagrant negligence of the defendants in the construction and maintenance of the elevator and its appliances. To this declaration, a number of pleas were ■ put in, among them being that' of not
1. Beall, the plaintiff below, while being examined as a witness in his own behalf, was permitted, over the objection of the defendants below, to say that, before the injury complained of, he “ could read, and was studying medicine, and was going to school, but that since it occurred he could. not read,” It is now alleged that this was incompetent. However, it was not averred in the declaration that this special injury resulted from the negligence of the defendants below. The rule is well settled that to recover for special damages, they must be stated in the declaration. 1 Sutherland on Damages, p. 763; 2 Greenleaf on Evidence, p. 254 (14th Ed.); Burson v. Cox, 6 Bax., 360. And if it appeared that this evidence had been offered for the purpose of resting upon it an independent claim for damages, it certainly would have been incompetent. But it is clear that this was not the purpose of the counsel of plaintiff below, but that this evidence was offered with the view of throwing light on one of the questions in controversy, to wit, the extent of plaintiff’s injuries, among which, the declaration averred, was spinal concussion. No effort was made to show any pecuniary loss on account of the plaintiff’s inability to study or to go
2. In the progress of the .trial, one Dr. Galtman was introduced as a witness, and he was permitted to submit to the jury an X-ray photograph, taken by him, showing the overlapping bones of one of plaintiff’s legs, at the point where it was broken by this fall. This was objected to by the defendant’s counsel. This picture was taken by the witness, who was a physician and surgeon, not only familiar with fractures, but with the new and interesting process by which this particular impression was secured. He testified that this photograph accurately represented the condition of the leg at the point of the fracture in question, and, as a fact, that by the aid of X-rays he was enabled to see the broken and overlapping bones with his own eyes, exactly as if stripped of the skin and tissues, they were uncovered to the sight. We might, if we so desired, rest our conclusion on the general character of the exception taken to this testimony, but we prefer to place it on the ground that, verified as was this picture, it was altogether competent for the purpose for which it was offered. New as this process is, experiments made by scientific men, as shown by this record, have demonstrated its power to reveal to the natural eye the entire structure of
3. The plaintiff below placed on the stand, as expert witnesses, one Garside and one Holroyd, and it. is assigned for error upon the part of the trial Judge, first, that he permitted these parties to .testify without having first qualified as experts. A sufficient answer to this particular objection would be '‘ that the determination of the question whether a witness offered has the requisite qualifications for an expert rests largely in the discretion of the trial Judge, and when, upon a preliminary examination, he has ruled that he has properly qualified himself as such, except in a case of clear abuse of his discretion, his conclusion, in this respect, would not be disregarded by a revisory Court.” Rogers on Expert Testimony, pp. 24, 25; Powers v. McKenzie, 6 Pick., 167. But, independent of this, an examination of
To each of these éxpert witnesses, plaintiff’s counsel put a hypothetical case, embracing the fact that these cables had been in almost daily use, lifting and lowering heavy weights for a number of years, and they were asked the effect of such use upon them, and to the case so put each answered that the strain and friction would produce crystalli-sation of the metal in the cables, which would make them brittle and greatly increase their liability to break; and each one of these witnesses fixed the life of a cable, under the facts in the hypothetical case, at from five to seven years. After making these statements, Garside was permitted to say, in answer to certain questions propounded to him by plaintiff’s counsel, that a continuous use of cables, under the conditions embraced in the hypothetical
It is otherwise, however, as to the witness, Hol-royd. In his examination, the bill of exceptions shows as follows: “Question Toy plcmitiff's counsel.— Mr. Holroyd, suppose an elevator used for freight and passengers, having two ¿-inch cables, to be us,ed in a jobbing and retail store, hauling carriages and heavy hardware, running all the way from two to six hours a day, and, under ordinary water pressure, should be able to carry up from 2,000 to 2,500 pounds at a load, what would you say would be the life of such a cable? Answer.— Well, six or seven years, I should judge. Ques. — State whether or not it would be prudent to keep the cables running longer than that for that kind of work.” At this point the defendants objected, on the ground that this was “not a proper subject of expert testimony, and also on the ground that the witness had not sufficiently qualified himself to speak as an expert.” This latter objection was conceded by the trial Judge to be well taken, and
While the general rule is that witnesses must speak to facts, yet, upon questions of skill or science, men who have made the subject-matter of investigation the object of their particular study are competent to give their opinions in evidence. But they will not be permitted to state their opinion upon any point the jury has to decide. 1 Phil, on Ev. (case Hill & E. notes, *778). Deductions from facts belong to. the jury, and when tile examination extends so far as to substitute the opinion of the witness, upon the very issue in controversy, for that of the jury, the province of that tribunal is unwarrantably invaded. Necessity alone is the ground upon which expert testimony rests, and the moment this necessity ceases, the exception to the general rule, which requires facts and not opinions from witnesses, ceases also. ‘ ‘ Hence, ’ ’ say the Supreme Court of Pennsylvania, in Graham v. Penn Co., 139 Pa. St., 149, “Avhenever the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knoAvledge or training, opinions
While it may be difficult often to fix the exact line between competent and incompetent expert testimony, yet, we think it clear that in no case can the witness be allowed to give an opinion upon the very issue involved. To permit this would be to substitute the opinion of the expert for that of the jury, whose duty it is to find the facts, and whose verdict is only an expression of their deduction from these facts. Such has been the holding in a great number of cases, only a few of which will be referred to.
In Kansas P. Ry. Co. v. Pearcy (Kansas Sup. Court), 11 A. & E. R. R. Cases, 260, the plaintiff, who had sued for personal injuries sustained in coupling cars, when on the witness stand, over the objection of the defendant, was permitted to state that he would not have been injured had the car approached at the usual and proper rate of speed, and another witness stated that a brakeman was compelled to rely to a great extent on the prudence of the party handling the engine. This testimony was held incompetent, as invading the province of the jury. In Muldowney v. Ry. Co., 36 Ia., 462, a brakeman, while attempting to couple cars, was crushed between two bumpers which failed to come together evenly. On the trial, various parties of extensive experience in handling cars were permitted to give their opinion that if the drawheads in question
A brakeman brought an action for injuries received while coupling cars, and the opinions of experts that he was careless in the manner he did his work, was deemed inadmissible. Hopkins v. R. R., 78 Ill., 32. To the same effect is Baxton v. Sommersett, 121 Mass., 446.
Central R. R. v. Ryals (Georgia), 11 S. E. R., 497, was an action for injuries to an employe, and it was held that the opinion of. a witness that the backing of the train, which was the immediate cause of the injury, was done carefully and without negligence, was inadmissible; and in Mantel v. Chicago, Mil. & St. P. R. R., 33 Minn., 62 (S. C., 19 A. & E. R. R. C., 362), the Court said: “ Whether this or that act of plaintiff or defendant was negligence, and whether due care required this or that to be done, are not matters of expert testimony. They are not matters of science or skill, as might be such a question, how long would it take to stop a train or street car going at a designated rate of speed, but they are matters of judgment and common experience, to be determined upon the facts and circumstances of the case, by the jury, who are as competent to determine them as any witness can be. ’ ’
This principle was applied still later by the Su
Many errors are assigned upon the action of the trial Judge, both upon his charge as given, as well as upon his refusal to grant certain special requests submitted to him by the defendants below. As for the error already pointed out this case must be reversed and remanded for a new trial, we do not deem it profitable to take up these assignments seriatim and dispose of them. Only two or three will be considered. It is complained that the Circuit Judge made a serious error in the beginning of his charge, with regard to the duty of the master to his servant in the matter of providing him with ■ safe machinery to work with, and that its prejudicial effect» was not sufficiently corrected by laying-down the correct rule on this subject in a subsequent part of his charge.
The particular error pointed out -is contained in the statement that ‘ ‘ the master owes to his servant or employe, the duty to provide safe and suitable machinery where that is necessary.” It is conceded that this error, as far as it could be, is corrected, by the announcement of the proper rule
The trial Judge further said to the jury: “If you find from the evidence that a wire elevator cable lasts for an unlimited length of time, then that ought to end this case, and your verdict ought to be for defendant.' On the other hand, if the evidence establishes the fact that a wire elevator cable will live for only a specified length of time when used, and should be taken out and removed even though there be no certain evidence of decay, and you further find from the evidence that the wire elevator cable of defendants was used for a greater' length of time than it was safe to use it, you should find for plaintiff.”
In this paragraph it will be seen that the trial
This was error. It was not enough to say that the defendants were liable, if it was found the life of these cables was limited, and that defendants used them beyond these limits; but he should rather have said to the jury that if they found that this life was limited, and that the defendants knew, or by the exercise of reasonable care could have known this fact, and continued to use them for a greater length of time than was safe, then they should find for plaintiff, if they, at the same time, found that the plaintiff was in the exercise of ordinary care.
It is said, however, that this objection is removed by two other clauses — one earlier and the other found later in the charge. These clauses are located in remote parts of the charge, and in them, in different but general formulas, the jury are told that where there is no knowledge of danger, and, by exercising ordinary care, no means of discovering it, then the owner is not chargeable with negligence. We very
The defendants below, among other special requests, submitted the following: “As a general rule, when an appliance, machine, or structure not obviously dangerous has been in daily use for years, and has uniformly been found adequate, safe, and convenient, it may be continued without the imputation of negligence. ’ ’ This request was properly refused, ‘'as it laid out of account that the strength of machinery ordinarily becomes impaired by wear, and that, to ascertain if such wear has rendered it unsafe, may require some examination. One has no right to assume because a machine never has given away that therefore it never will, especially of a machine upon the safety of which the lives of others may depend.” Goodsell v. Taylor, supra.
The master “is not only bound, in the first instance, to use reasonable care in the selection of machinery and appliances, but also to exercise rea‘sonable and proper watchfulness to see that it is kept in proper condition, because, however perfect they may be when bought, they are liable, from ordinary use and wear, to get out of repair, and such care and watchfulness is due to guard against defects that may arise from use as the nature of the business and the risks incident thereto demands.” Wood on
For the error indicated, the judgment must be reversed and the case remanded for a new trial.