149 P. 1035 | Or. | 1915
Opinion by
The evidence shows that the defendant owns at Perry, Oregon, a sawmill, where it manufactures lumber from logs which are cut in the Blue Mountains and transported over the defendant’s railway to Hilgard, and thence over the line of the Oregon-Washington Railway & Navigation Company to the mill. The grade of the defendant’s railway is quite steep in some places, and, in order safely to transport logs, the flat cars used for that purpose contain air-brakes that are operated by the engineer in charge of the locomotive. Each car has a supplemental reservoir, called a retainer, which when filled with air from the engine, will maintain adequate pressure upon the brakes from four to eight minutes. The vehicles used for hauling logs are flat cars usually longer than the load transported. Near each end of the cars are placed iron cross-bunk
It is argued that the question to be considered was whether or not it was tbe duty of tbe deceased to pass over loaded cars when they were in motion, and that in permitting Bean, who did not see tbe accident, to state upon oath that there was no necessity for a brakeman to travel over moving cars loaded with logs, was allowing tbe witness to express an opinion upon a matter not requiring any particular skill, thereby disclosing tbe competency of tbe jury to determine tbe matter. Did tbe wrapper chain break by reason of tbe
Men engaged in the railroad service are experts in that branch of transportation, and may express opinions upon questions in relation thereto when the inquiry involves matters not within the knowledge of ordinary jurors: Lawson, Ex. Ev. (2 ed.), p. 91.
In Galveston etc. R. Co. v. Bohan (Tex. Civ. App.), 47 S. W. 1052, 1053, it was decided that a witness who was an expert in the case of railroad tracks, and had
“The engineer, fireman, brakeman, conductor, section foreman and experienced men in other departments may testify as to what is usual, customary or necessary to be done in their special lines of work.”
In Nowell v. Wright, 3 Allen (Mass.), 166 (80 Am. Dec. 62), it was ruled that, in receiving the opinion of tenders of drawbridges as to the necessity of keeping the gates of the bridge shut and hanging out lanterns while the draw was open in the night-time, the trial court committed error.
In Chicago etc. R. Co. v. Cummings, 24 Ind. App. 192 (53 N. E. 1026), which was an- action to recover damages caused by the defendant’s alleged negligence in unnecessarily sounding a locomotive whistle, it was held that the opinion of an engineer that the blowing of a whistle at the time and place mentioned was unnecessary was incompetent.
In Lane v. New York etc. R. Co., 93 App. Div. 40 (86 N. Y. Supp. 947), in allowing an expert witness to testify that rules suggested by him were necessary, it was determined that an error had been committed, and that it was competent for the jury, when all the facts and circumstances bearing upon the situation had been placed before them, to determine the question for themselves.
In New York Electric Equipment Co. v. Blair, 79 Fed. 896 (25 C. C. A. 216), which was an action to recover damages alleged to have been caused by the defendant’s negligence in hoisting pipes, it was con-
It is quite probable that, if directly asked, Mr. Bean could have said the retainers might have been turned down when the train came to a stop for that purpose; but, however this may be, the witness, as superintendent of the defendant’s railway and logging department, was undoubtedly qualified to express an opinion, and, having testified that it was unnecessary for the brakeman to pass over the loaded cars when in motion, it is not believed that the answer to the question objected to prejudiced the plaintiff’s rights.
It was the particular province of Mr. Bean to know whether or not a wrapper chain had ever been broken when a loaded train was descending the mountain, and his testimony on that subject was proper, assuming, as we must, that ample opportunity was given for cross-examination as to his means of acquiring the information of which he testified.
The hill of exceptions does not purport to set out any of the testimony tending to show what Mr. Bean’s qualifications as an expert were, except that he had many years’ experience as the defendant’s superintendent. From this circumstance alone, and in the absence of any testimony on the subject, it will be taken for granted that he was competent and qualified to state the relative strength of the wire link, and that ordinary jurors had no general knowledge of the subject.
“They come through the Marshall-Wells Hardware Company of Portland.
“Q. What are these chains called in commerce?
“A. American steel-proof test-proof chains.
“Q. Do you know whether they are blacksmith-made or factory-made?
“A. I suppose factory-made. * *
“Q. Now, then, you may state from your knowledge whether these chains come from a reputable factory for making chains of that character.
“A. Yes, they do.”
Based on this and other testimony the court charged the jury as follows:
“I instruct you that it is the master’s duty to exercise reasonable care only. It is not sufficient to show that defendant might have had better or safer machinery or methods than the ones it uses, nor was he bound to adopt every latest improvement. It is a well-settled rule that, when an appliance has been in daily use*12 for a long time and proved safe, (and) its use may continue without the imputation of want of care. So that if you find from the testimony that the chains used by defendant in this case in binding its logs on its cars broke at time of such accident, and that the same caused the death of Andrew Brodreskift, and you further find that such chain was purchased of a reputable manufacturer, manufactured for the purposes defendant used same, and that such breakage was from some hidden defect which was undiscoverable by ordinary inspection, then the defendant was not guilty of negligence, and your verdict should be for defendant.”
An exception having been taken to this instruction, it is contended that an error was committed in giving it. An examination of the language employed will show that if the word “and,” indicated by parentheses, be retained, a part of the sentence was evidently omitted by the official reporter. If, however, the stenographer inadvertently included that word the remaining part of that sentence, “its use may continue without the imputation of want of care, ” as a declaration of a legal principle, is not universally true. A chain may have been in daily use for a long time and proved safe, and yet such employment so impaired its strength that a continuation of the use would become extremely dangerous. The idea undertaken to be expressed by the language referred to was evidently obtained from the case of Sappenfield v. Main St. etc. R. R. Co., 91 Cal. 48, 57 (27 Pac. 590, 592), where it is said:
“It is a well-settled rule that when an appliance or machine, not obviously dangerous, has been in daily use for a long time, and has uniformly proved safe and efficient, its use may be continued without the imputation of imprudence or carelessness.”
The instruction complained of, and many other alleged errors that have been assigned, have been carefully considered; but when viewed in connection with the entire testimony, instructions, etc., which are attached to and made a part of the bill of exceptions, it is believed that no prejudicial error was committed at the trial.
Observing the rule established in that ease, we conclude that the plaintiff herein was not entitled to maintain this action, and as to him the judgment must be and is affirmed. Affirmed.