138 S.W.2d 345 | Ky. Ct. App. | 1940
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *176 Affirming.
This is a suit for damages for the death of Douglas R. Morton. The appeal is from a judgment for the defendant on a directed verdict.
The decedent was an employee of the State Highway Commission, engaged in painting and repairing a bridge across Rolling Fork of Salt River, between Nelson and Larue Counties, when he was killed on May 8, 1936. The bridge is 150 feet long, with a steel superstructure. The defendant maintains on its own right of way, almost parallel with the bridge, an electric line of three wires, carrying 11,000 volts. The elevation of the wires is about the same as the top of the bridge superstructure, and at the point of the accident is 11 feet distant. Morton was on a chord or top girder of the bridge truss on the side nearest the electric line. It had been found necessary to remove a lateral steel rod 27 feet long extending diagonally across to the other chord which, with another rod, formed a brace in the shape of an "X" connecting the two trusses. The rod had been loosened and Morton was pulling it across with the end protruding far over the side of the bridge in order that it could be passed beneath the intersecting rod and be lowered to the floor. In extending it back the rod came in contact with the electric wire and Morton was electrocuted.
The plaintiff alleged negligence in erecting and maintaining a high tension wire too close to the bridge and without any protection or warning of its dangerous character. The line was constructed long after the bridge and ten or twelve years before the accident. The deceased had been at work on the highway and bridge for two or three weeks and his fellow workmen testify to their knowledge of the dangerous nature of the line. The deceased, an intelligent man, is chargeable with the same knowledge. The trial court excluded evidence that at one end the line was only six feet from the *177 bridge truss and confined the testimony to its proximity within the radius or reach of the rod being removed. As stated, it was eleven feet measuring at a right angle, but it was thirteen feet to the point where the rod touched the wire as it was being moved back at an angle. The court also excluded evidence of the foreman under whom the deceased was working that in view of the accident he considered the situation to be dangerous and had taken his men off the bridge; also testimony of a highway engineer that the line could have been constructed farther from the bridge without additional expense or burden. The court likewise withheld from the jury testimony of two witnesses who qualified as having expert knowledge of the fundamentals of electricity, which was in substance and effect that in their opinion, based upon hypothetical questions, the line was an unsafe distance from the bridge and from the standpoint of workmen on it the defendant had not used the highest degree of care in erecting and maintaining the line at that location.
The appellant argues that there was enough evidence of negligence to take the case to the jury, especially if the court had considered the proffered evidence which he maintains was competent. The first items of evidence, namely, as to the proximity of the wires to the bridge at another point than the accident, and as to the foreman after the accident considering the wire to be dangerous, was clearly incompetent. Likewise, that the defendant could have erected its line farther away from the bridge without additional expense. Appellant suggests no reason or authority for holding the evidence competent and we know of none. As to the testimony of the experts. Demarcation between fact and opinion evidence is often obscure, for many times it is difficult to say where fact leaves off and opinion begins. We think it clear, however, that the opinions of experts as to the ultimate fact of whether an open, visible situation is dangerous is not competent. That would be to allow the witness to take the place of the jury. It is but to express the thought differently to say that it is the province of a jury to reach and declare the final opinion as to the ultimate fact. A primary factor in this case was whether the placing of a heavily charged electric wire on a level with the top of a bridge truss, *178 eleven feet distant, was unsafe from the standpoint of a workman who might be expected to be there. As a rule, general but not inflexible, a witness cannot be allowed to express an opinion upon the exact question or matter directly in issue which the jury are required to decide. Wigmore on Evidence, Section 1920; 20 Am. Jur., Evidence, Sections 765, 782. Mr. Wigmore criticizes this statement (Section 1924) and as an expert authority on the subject of evidence says the only true criterion is:
"On this subject can a jury from this person receive appreciable help? In other words, the test is a relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any class of persons acting professionally."
But under either abstract statement, the offered testimony of witnesses claimed to be skilled in matters of electricity that the condition described was unsafe was inadmissible. It was unsafe only if a workman should reach out with some conductive instrument — such as a steel rod — and touch the wire. There was nothing subtle about it and it took no expert to inform the jury as to the danger. Expert testimony is not permitted to invade the field of common knowledge. Barrett v. Brand,
There remain in the case for our consideration the facts as above described. The question is resolved into whether the court properly ruled that as a matter of law there was no proof of negligence or that there was proof of contributory negligence on the part of the decedent. *179
There is no denial of the proposition that in constructing and maintaining an electric line all reasonable precautions are to be adopted and observed for the protection of every person at every place that one has a right to go or to be, and that this degree of precaution is of the highest, because in dealing with so deadly an instrumentality the highest degree of caution is but ordinary care commensurate with the danger. Louisville Gas Electric Company v. Beaucond,
The distinction in principle is that in those cases the injury was produced by the negligence complained of — the proximate cause — although it may not have been foreseen, while in others the act of the defendant, alleged to be or actually negligent, indirectly or remotely caused the result, and for such to constitute actionable wrong the accident must have been foreseen or anticipated in the light of the attendant circumstances. Nunan v. Bennett,
This case is analogous to and ruled by Kentucky Utilities Company v. Searcy,
The judgment is affirmed.