28 Wash. 227 | Wash. | 1902
The opinion of the court was delivered by
— Action for damages for personal injuries. The superintendent of the defendant street railway company was driving piles in repairing the track of the street railroad. The pile driver was so> constructed that the gins (that is, the upright pieces between which the hammer plays when the driver is in operation) could be raised and lowered. They were built upon a fulcrum about the center of the car. When the driver was removed from place to place, the gins were turned down, so as to lie lengthwise of the car. When the driver was in operation, the gins were turned so as to stand in an upright position. The car was moved from place to place on the track by attaching to' it a car with an electric motor. The driver could be raised or lowered by moving on an axle or channel pin. It was about thirty-three feet
1. The first error claimed by appellant is the denial of defendant’s motion for a non-suit at the conclusion of plaintiff’s testimony, and for dismissal at the conclusion of trial. The material conflict in the testimony was as to the ability of the five men to hold the rope which they were ordered to take by the superintendent, and let the gins down slowly. The testimony on the part of the plaintiff tended to show 1hat the men holding the rope were not able to prevent the rapid falling of the gins. There was also some dispute in the testimony relative to the number of men who actually had hold of the rope. It
2. Counsel for defendant complain of part of an instruction given by the court as follows:
“It is the duty of a master to furnish to tire servant reasonably safe and secure machinery and appliances in the performance of his work, and not to expose the servant to danger in the performance of his work.” .
But a careful examination of the whole instruction relative to the master’s duty does not leave a prejudicial meaning in the expression “not to expose to danger,” etc. The instruction, all together, fairly placed before the jury the duty of the master to provide reasonably safe machinery and appliances in the performance of the work. It, perhaps, may be said that the statement that the master ought not to expose the servant to danger in the performance of his work is correct, as an abstract legal statement; and, while not a happy expression to embody in an instruction, we do not think an inference was drawn from it that was injurious to the defendant.
3. The superintendent directed the plaintiff and his fellow workmen to take hold of the rope and lower the gins, and one important contention was whether the number of men who were- ordered to take hold of the rope was sufficient to let the gins down in safety. There was testimony of the workmen on the part of the plaintiff tending to show that the number of men called to hold the rope was insufficient, and they were not able to carry out the direction. This evidence included an expression of opinion by these workmen, who were themselves familiar
“There has been some expert testimony given in this case. The court instructs you that- all evidence given as to the opinion of a witness should bo considered — of the opinion, mark you, of a witness — should be considered and weighed by you with caution. You are to carefully separate, if a witness is introduced as an expert, what he testifies to as a fact, and what he testifies as to his opinion. As to- facts that he testifies to that came under his observation, of course, his testimony is to be weighed the same as any testimony of any witness who is credible, or whom you find to be credible-, who- testifies to- what he saw, to what he heard, or to- what he knew. But when the testimony of the witness entered the domain of opinion, then his testimony should be weighed and considered by you with caution. While the testimony of experts is competent, its weight and credibility is a matter entirely for your consideration. Such testimony should be carefully considered with reference to the supposed or proven facts upon which the opinion of the expert or experts are founded.”
The giving of this instruction is assigned as error prejudicial to the defendant. It is urged that the instruction applied particularly to the expert witness introduced by defendant, and thus singled out his testimony, and directed that it be weighed with caution. Relative to the
“(1) That expert testimony is -to be considered like any other testimony in the case, and tried by the same tests. (2) That expert testimony is to be received with caution. (3) That expert testimony is entitled to little weight. (4) That expert testimony is entitled to great weight.”
Erom an examination of the authorities, it would seem that, some confusion arises when the probative value of opinion evidence and its competency, as legal propositions, are under discussion, and when it is commingled with what should be the proper instructions given to the jury. The great weight of legal opinion seems to be that opinion evidence is less reliable, less valuable, than evidence of facts. This view is frequently expressed by eminent jurists. Judge Miller in Middlings Purifier Co. v. Christian, 4 Dill. 448; also Beaubien v. Cicotte, 12 Mich. 459; Grigsby v. Clear Lake Water Co., 40 Cal., 396; Hayes v. Wells, 34 Md. 512. But it does not necessarily follow that such expressions of the value of expert testimony, although correct and the general view, should be embodied in instructions to a jury. It certainly cannot be laid down as a general rule to be given to a jury that expert testimony is of great value or little value. In fact, it may sometimes be of great value, and sometimes valueless. It depends on a variety of circumstances which ought to be considered, among which the most important are the extent of the knowledge of the expert, his opportunities for observation, and his skill and experience. It would seem then that the first view is correct; that is,
For error in this instruction, the judgment is reversed, and the cause remanded for a new trial.
Hadley, Fullerton, White and Mount, JJ., concur.