113 P. 467 | Mont. | 1911
delivered the opinion of the court.
On December 6, 1907, near the station of Mace, in the state of Idaho, locomotive engine No. 79 belonging to the defendant railway company exploded, so injuring the engineer, William Copenhaver, that he died some days later. His fireman, Buis, was also killed. This action is prosecuted by Copenhaver’s wife and minor son to recover damages sustained by his death. A jury fixed such damages at $12,000, and judgment was entered
The complaint charges that “the boiler and parts thereof were in a dangerous, defective, and worn-out condition and wholly unfit for the uses to which they were put at the time of said accident.” No specific defect is mentioned. There was testimony to the effect that the crown-sheet of the engine had been burned about a week or ten days prior to the explosion while the machine was in the roundhouse at Wallace. Considerable doubt was thrown upon the truth of this testimony by other evidence in the case; but we cannot say that its probative force was entirely destroyed. That was a question for the jury to decide. There was an old patch on the flange joining the flue-sheet and the crown-sheet of the engine. It was placed on the outside of the fire-box, and plaintiffs’ witnesses declared that it should have been placed on the inside. Seven flues had been removed at the point in question, and the flue holes filled or plugged by placing “sunflowers” therein. One of the principal points in issue was whether the patch was properly put on. After the explosion a part of it remained attached to the crown-sheet, showing that it had been tom apart. Whether the patch was cracked before the explosion occurred was also a mooted question at the trial. Whether the removal of so many flues weakened the holding power of the patch and the flue-sheet was also contested. The engine leaked very badly in the fire-box for some time prior to the accident. It was conceded by both sides; that the flues leaked and had been frequently caulked; but there was testimony to the effect that this would not tend to cause an explosion. Whether the crown-sheet leaked was a mooted question. Some time after the explosion it was found that three radial bolts or stays, designed to support and strengthen the crown-sheet, were missing from the wrecked boiler. Whether they were broken off before the explosion or cut off after that event was also an issue. One of defendant’s witnesses testified that he cut them off after, the explosion, and this testimony was corroborated. There was also a sharp difference of opinion be
1. Plaintiffs’ witness Sehelega, an expert boiler-maker, familiar with boiler construction and repairs, made this statement: “The defective portion should be cut out so that the water could get to the patch, and, for another reason, that the crack could not extend any farther. This patch was not put on in the usual and customary method of patching these kinds of defects.” He was then allowed to answer this question, over objection: “State whether or not, in your opinion, it is a reasonably safe way in which to make this repair.” He answered: “It was unsafe.” This question was also objected to: “Mr. Sehelega, taking into consideration these various conditions of this engine boiler, as described by you to have existed before this explosion, and basing your opinion upon those conditions that yon have testified to as existing, you may state whether, in your opinion, that boiler was.in a reasonably safe condition for use on December 6, 1907.” The answer was: “The boiler was in an unsafe condition.” A third question was asked: “Basing your opinion upon your examination of this boiler and the vari
Recurring to the question of the competency of the interrogatories propounded to the witness: It must be borne in mind that these questions were asked before there was any conflict in the evidence and in an endeavor by the plaintiffs to make a prima facie case. Section 7887, Revised Codes, provides that a witness may give his opinion of a question of science, art or trade, when he is skilled therein. This means that an expert witness may give his opinion upon, or about, a question of science, art or trade. (Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904.) In the case just cited this court said: “The general rule, however, is that [a witness] may state facts only whenever the question to be determined is the result of the common experience of all men of ordinary education, or is to be inferred from particular facts; the inference is to be drawn by the jury and not by the witness. ’ ’ In that case and in the case of Metz v. City of Butte, 27 Mont. 506, 71 Pac. 761, also cited by appellant, the court did not hesitate to say, in effect, that the jurors were as well qualified to draw the proper inference, from their own experience, as was the witness.
The trial court is the first judge of the competency of a witness to testify as an expert. (Yergy v. Helena L. & Ry. Co., 39 Mont. 213, 102 Pac. 310.) And when the court is unable to say, as a matter of law, that the jurors are as competent to pass upon the safety of an appliance as are men who have special knowledge on the subject, gained from experience, the evidence of such men may be admitted. (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42.)
This brings us to a phase of the ease which affords a proper opportunity for a few observations concerning the duty of this court in the determination of appeals in civil actions. Section 6593, Revised Codes, provides that no judgment shall be reversed by reason of any error in the proceedings which does not affect the substantial rights of the parties. We doubt if the hench and bar of the state have given this statute the consideration, scope, force and effect to which it is entitled. It is plain and requires no interpretation. This court is commanded to give judgment on appeal without regard to errors which do not affect the substantial rights of the parties. The statute was designed to prevent reversals of causes wherein substantial justice has already been done. It was intended to put a speedy end to litigation, when that object can be attained without injustice. The power to determine the ultimate question whether the substantial rights of an appellant have been violated must reside somewhere. The Constitution framers and the legislative assembly, reaching out, apparently, toward that
Let us assume that the exceptions we have been considering were well taken, and apply the statute to this ease. Plaintiffs’ witnesses, as experts, gave opinion as to the condition of the engine boiler before the accident, and the nature and cause of the explosion. Defendant’s witnesses, also experts, arrived at conclusions altogether different. Every opportunity was viven and taken for a thorough investigation. No competent Testimony was excluded. The fact that the defendant, after the court’s ruling, was obliged to rebut the testimony of plaintiffs’ experts, is not in our judgment sufficient to take the case out of the operation of the statute. The jury was free to adopt the opinions of either set of witnesses. After inspection of the wrecked boiler, they adopted those of the plaintiffs’ experts. We think, on this branch of the ease, both parties had a fair •md impartial trial, regardless of the rulings we have just considered.
2. At the close of plaintiffs’ case the defendant moved to strike from the record ^all of the testimony relating to the alleged defects in the boiler except that relating to the patch and the cracks, and especially the testimony relating to the defective stay bolts, for the reason that it in no manner relates to the explosion as a producing cause. ’ ’ The court, by consent, granted the motion as to the stay bolts and overruled it in other respects. Appellant cannot complain of this ruling. The mo
3. Defendant offered to prove by a witness that while there exists a popular impression that metal having holes in it, when heated, will expand toward the holes and make them smaller, such impression is erroneous. The offer was refused. The popular impression was immaterial. It was defendant’s privilege to give the facts in evidence, and, as we read the record, it finally succeeded in doing so.
4. Defendant offered this instruction: “(9) Among the alleged weaknesses claimed by plaintiff is the condition of the hammer heads. It is insisted that they were worn off and weakened so as to have lost or impaired their holding power. Here the burden of proof is upon the plaintiff to show the condition of the hammer heads to have existed as she claims, and that this created such a weakness as that it did, and in the natural course of events would have been likely to have caused the explosion, and that it was a weakness without which the explosion could not have happened, and that this condition had existed so long that the defendant in the exercise of reasonable care should have discovered and repaired it.” The court struck out. “and that it was a weakness without which the explosion could not have happened,” and inserted in lieu thereof, “and that it was a weakness that contributed to the cause of the explosion.” There was no error in this action of the court. The complaint, as aforesaid, charges that the boiler and parts thereof were worn out and defective. There was no attempt to have this allegation made more specific. Schelega testified: “The defects of the boiler was the general'cause of the explosion.” Cummings said: “That fire-box, from my examination, was unfit, and had been for some time previous.” Four of plaintiffs’ witnesses testified that the engine was not in a reasonably safe condition • for use and operation, on account of the several defects in the boiler which they described. They were of opinion, as we understand, that each of the alleged defects contributed, more or less, to this weakened and unsafe condition. Defendant asked
5. Defendant requested the court to charge the jury that, “if a strike existed which made it more difficult than it otherwise would have been to accomplish inspection, only such degree of vigilance would be required during the continuance of the strike as would represent reasonable care under the circumstances then existing.” The court refused the instruction. This was a correct ruling. There is some desultory testimony in the record to the effect that there was a strike among the boilermakers, but not anything appears to have been predicated upon the fact, either in the pleadings or upon the trial, prior to the tender of this instruction. The testimony is too unsubstantial to be entitled to any consideration. And, indeed, it does not appear that there was any failure to inspect or repair on account of the strike.
6. It is contended that the evidence is not sufficient to support the verdict. The testimony is in sharp conflict, and that for the plaintiffs was amply sufficient, if the jury believed it, to support ,a finding in their favor. Counsel assert that the verdict is in conflict with the undisputed physical facts disclosed, and they make a very elaborate and ingenious argument in support of their position, but we cannot agree that the question so ably presented to this court was not for the jury to decide.
The judgment and order are affirmed.
Affirmed.