157 P. 641 | Mont. | 1916
delivered the opinion of the court.
On the second trial of this cause heretofore ordered by this' court (48 Mont. 226, 136 Pac. 711), the plaintiff had a verdict
It appears from that statement that at the first trial the jury returned a verdict against the defendant corporation and in favor of its codefendant Hadalin. The judgment as to the latter was permitted to become final, and thus he was eliminated from the case. As soon as the remittitur from this court was filed in the district court, counsel for the defendant corporation applied for an order removing the cause to the United States court for the district of Montana. After argument the application was denied. Counsel for the defendant has made this ruling the subject of their first assignment of error.
We are unable to review the action of the court in denying
The plaintiff’s injury was caused by the caving of a ditch which he was engaged with others in excavating. On the former appeal it was pointed out that the evidence wholly failed to disclose whether the fall of earth by which plaintiff was injured was due to the negligence of the defendant corporation in failing to crib the completed portion of the ditch, or by the act of the plaintiff himself in the construction of that portion of it in which he was at work. It was held that, if the fall had been shown to be due to the failure of the defendant to crib the completed portion, the fall beginning in that portion and extending to the part where the plaintiff was at work thus causing the fall there, a case would have been made fixing liability upon the defendant; but that, inasmuch as the evidence did not show this, but left room for the inference that the cause of the fall was plaintiff’s own carelessness during the course of his work, it failed to show a causal connection between the injury and defendant’s negligence, even though it appeared that the fall extended to the completed portion of the ditch, and hence a case of liability was not made out. The plaintiff was the only eye-witness of
The theory upon which expert testimony is held competent is that there are persons whose knowledge of a science, art or trade being superior to that of the mass of mankind, qualifies them to express an opinion upon any matter pertaining thereto. That the subject under inquiry here was such as to permit resort to expert evidence we have no doubt. One who has had experience in work such as that called for by the digging of ditches for gas and water pipe and excavating for buildings, from the necessity of the case has been required to note the character and consistency of the different kinds of earth under varying conditions. He must therefore be presumed to have special knowledge of the subject which the mass of mankind does not and cannot possess, whether his work is technically designated as a science, art or trade, or not. This brings the ease within the rule of the statute, and, the witnesses having shown a special knowledge on the subject, it was competent to take their opinion. (Copenhaver v. Northern Pacific Ry. Co., 42 Mont. 453, 113 Pac. 467; State v. Keeland, 39 Mont. 506, 104 Pac. 513.)
In putting a hypothetical question to a witness, .counsel has
It is insisted that the question embodied a fact which the evidence does not tend to show, viz., that the earth exposed in the walls of the ditch at the point where the plaintiff was working was different in texture and appearance from that at any other
Counsel undertook to supply, by circumstantial evidence and the opinions of the experts referred to, the causal connection between the defendant's fault and the injury. We think they succeeded in making out a prima facie case. The finding of the jury thereon, confirmed by the action of the trial judge on the motion for a new trial, we must accept as conclusive.
The judgment and order are affirmed.
Affirmed.