176 F. 71 | 8th Cir. | 1910
The plaintiff below, John R. Hale, made a written agreement with the Chicago, Rock Island & Pacific Railway Company to load gravel into its cars at certain traps on a spur track, which extended down into its gravel pits near Lawton, in the state of Oklahoma, for 15 cents per cubic yard. The spur connected with the main track, and ran down into the gravel pits upon an inclined plane a distance of about 1,200 feet. In these pits there were traps for loading the cars. The practice of the railroad company was to set several empty cars on the spur track upon the brink of the pits so that the plaintiff could let them down to the traps from time to time as he wanted to load them without the use of an engine. When the loading of a car was about completed at one of the traps on the 27th day of September, 1905, the plaintiff went up to the place where there were 10 or 12 empty cars upon the spur track for the purpose of letting some of them- down the inclined plane, a distance of about 100 feet, to'the trap that he might load them. He found a large heavy car with a brake that upon careful examination appeared to be good and a small car just’back of it whose brake staff was broken. He separated these cars from those behind them, mounted the larger car, started the two cars down the incline, and then by the use of a stick and with his hands he tried in vain to retard and control their motion down the hill, and the forward car struck the loaded car with such violence that it threw him against a timber, and seriously injured him. He brought an action against the railway company, and recovered a judgment which this writ was sued out to reverse.
“Q. 1 will ask you now whether based on your experience and observation there at ilie gravel bed two cars could be bandied safely down that incline when one brake was a good one and the brake on the other car was a bad one?
“A. Yes, sir: we took one good car and handled a bad one, let two down at once.”
The general rule is that witnesses must testify to the facts within their knowledge, and that they may not state their opinions. But there is a well-established exception to this rule to the effect that the opinions of witnesses who possess peculiar skill or knowledge may be received when the facts are such that persons 'without such skill or knowledge, and presumptively the jurors, are likely to prove incapable' of forming a correct judgment relative to the matter in hand without the aid of such opinions. Chicago Great Western Ry. Co. v. Price, 97 Fed. 423, 426, 38 C. C. A. 239, 242; Lake v. Shenango Furnace Company, 160 Fed. 887, 894, 88 C. C. A. 69, 76; United States Smelting Co. v. Parry, 166 Fed. 407, 411, 92 C. C. A. 159, 163. The jurors in this case who were undoubtedly without the special knowledge which the witness had of the grade of the spur track and of the operation of two cars down the incline with a single brake were incapable of forming a correct judgment whether or not such a method of operation was reasonably safe while the experience and knowledge of the plaintiff enabled him to do so. Iiis opinion, therefore, fell under the exception to the rule, and it was properly received in evidence.
He testified that he resided on a farm at the time of the accident; that for three years before it he had not been in any business particularly; that he had been looking after the work of loading the cars for the railroad company in their gravel pits at this place for about two months; that, when he was short a man, it was his habit to operate a wheeler or to do any work that it was necessary to have done; that he had been engaged in contracting with various parties for the performance of work for about 20 years; and that he had worked with and in the place of his men in the same way during that time that he was doing when he was engaged in the performance of this contract. It is specified as error that in this state of the record the court permitted the witness over the objections of the defendant to answer these questions:
•‘Q. I will ask you if you know what was your fair and average earning capacity on the 2,>th day of September, 3905, and just prior thereto? (Objected to as Incompetent, irrelevant, immaterial, calling for conclusion of witness, not proper element of damages.) * * * A. Yes, sir; I know. * * * Q. I will ask yon to state to tho jury what you were earning. (Objected to as incompetent, irrelevant, Immaterial, not proper measure of damages, calling for conclusion, speculative.) * * * A. About $12 a day.”
But the ruling of the court nutst be judged by the state of the record when it was made. At that time there was no evidence before the court that the plaintiff had combined any substantial capital with his labor in loading the cars. The contract that he was engaged in .performing and the fact that other workmen were assisting him were the only pertinent facts in the record, and the case as it then stood fell fairly within the 'rule that one whose earnings are dérived from his labor, skill, or knowledge, without the use of substantial, capital, may prove the amount of those earnings at and for a reasonable time ante?-rior to the occasion of his wrongful injury and the decrease of these, earnings necessarily effected by the injury. Ehrgott v. Mayor, 96 N. Y. 264, 276, 48 Am. Rep. 622; Winter v. Central Iowa Railway Co., 80 Iowa, 443, 45 N. W. 737, 738; Walker v. Erie Railway Co., 63 Barb. (N. Y.) 260, 265; Finken v. Elm City Brass Co., 73 Conn. 423, 47 Atl. 670, 671. There was no error in the ruling of the court 'here challenged. Counsel insist that the refusal of the court to instruct the jury to return a verdict for the defendant was error: (1) Because the plaintiff agreed in the written contract to hold the defendant harmless from all damages caused by injuries growing out of the negligence of the defendant or its servants, but a careful reading of the contract has convinced that the agreement of indemnity which it contains was limited and was intended to be restricted to damages from injuries to the officers, agents, and servants of the plaintiff, and that it did not extend to damages from injuries to him. (2) Because the defective brake was not the proximate cause, and the act of the plaintiff in attempting tp 'lower two cars-with one brake was the intervening independent cause of the injury, but there was evidence that these cars were empty, that two cars previously had been lowered into the gravel pit safely with one brake, and that the brake in question was so defective that it had no effect whatever to retard the cars so that its defect would have been equally futile if the plaintiff had lowered but one car with it. (3) Because the injury could not have been reasonably anticipated from the defective brake, but the plaintiff had contracted to load the cars in the pit and the defendant had agreed to furnish them. It placed them, noi at the traps in the pit, but above upon the spur track, whence it ' knew that the plaintiff must lower them by hand, and that- he would
Several excerpts from the charge of the court and several refusals to give reqtiested instructions are specified as error. But the charge covers eight printed pages of the transcript, and the only exception to it is in these words:
“To the giving of the charge as given by the court and to each and every part thereof the defendant objects and excepts.”
Many sound and pertinent propositions of law and statements of fact are contained in the charge and a general exception which specifies no ground to a charge or a portion of a charge to a jury which embodies several propositions of law is futile if any of the propositions are sound. St. Louis, I. M. & S. Ry. Co. v. Spencer, 71 Fed. 93, 95, 18 C. C. A. 114, 116; Union Pacific R. Co. v. Thomas, 152 Fed. 365, 372, 81 C. C. A. 491, 498.
The defendant made a single request that the court give nine separate instructions which cover three printed pages of the record. The court denied that request, and the defendant objected and excepted to that denial. This exception w-as futile because one of the nine requests, was that the court should instruct the jury to return a verdict for the defendant, and this request was unsound. Where a request for an instruction contains two or more propositions of law, one of which is. unsound, there is no error in the refusal to grant it. United States v. Hough, 103 U. S. 71, 72, 73, 26 L. Ed. 305; Monarch Cycle Co. v. Royer Wheel Co., 44 C. C. A. 523, 526, 105 Fed. 324, 328; Chicago Great Western Ry. Co. v. Roddy, 131 Fed. 712, 718, 65 C. C. A. 470, 476.
The judgment below must be affirmed; and it is so ordered.
