*1 in using unnecessary peril same employee while subjected tbe not tender duties, top or caused of the performance of in for such use the service condition and safe “in proper exception placing being With the put.” which same and cus- tender was of standard thereon, top dog house engines in all equipped other the same tomary make, built and require- complied all the with other railroads use on this and rejecting and In Commission. orders the Commerce ments and court effect the defendant’s evidence to this striking some of court also went clearly appear. The error, such facts but telling jury giving No. too far Instruction. tending the evidence any purpose effect consider not to was manufactured show locomotive and tender that the question generally. by railroads by large builder of locomotives used standard “for proper board and excluded evidence This instruction was too (N. Y.), N. E. jury’s v. McAdoo consideration. [Ford 257 U. S. (certiorari denied, 641).] submitting Instruction For the case the error Ferguson and judgment cause remanded. 2, the is reversed and the Hyde, OC., concur. adopted C., foregoing by Sturgis, opinion
PER CURIAMThe Coles, J., judges except concur, All opinion as the of the court. sitting. Century George Washington Cor- Company, Electric Phares v. Appellant. 91. poration, W. One, April 17, 1935. Division *2 Jr.,
Wayne Ely, MeChesney appellant. Tom S. P. Ely, John B. Flynn respondent. Dale & and Mason *3 HYDE, an personal alleged C. This is action for injuries, to have by been caused an electric shock. Plaintiff claimed to have been carrying put shocked while out an order his foreman to elec- turning in an power trode electric furnace without off in the furnace it. $9,500, next to Plaintiff a from obtained verdict for and judgment thereon, appealed. entered defendant has September, he was injured, was that evidence Plaintiff’s He foundry. working furnace in defendant’s a tender while a January, 1925, and worked about work there
had commenced and tender helper. He was then made a furnace year a moulder’s night Foreman Arthur shift under about three months worked day on the shift for about sis months then worked Althaus. He injured was at the time he was injured. His foreman he was before designated furnaces, three electric Pippeu. Plaintiff tended Jack to placed These furnaces were end end 1, No. No. 3. as No. part. side, on the west No. on the east five feet No. 1 was about barrel, round like a center. The furnaces were side above the long, and rested on a frame about four and one-half feet forty melting thirty to They metal. took from floor. were used melt forty-five sixty from minutes to melt bronze and minutes ain brought in a and shoveled door Metal wheelbarrow brass. by poured When it was furnace. melted in the center the heat by means of crank. To make turning the a furnace over a half inches electrodes, necessary to melt carbon two metal, long, where each end of in diameter and three feet about . through them. The arc of electric current run the furnace and an the electrodes the center of electricity ends of between the wall by was turned on heat. This current created the furnace caused began melt, were the furnaces When the metal switch. by rocking moving a lever. The motor, rock started sticking the furnace. to the sides of prevent the moulten metal pushed were gradually burned off of the electrodes ends housing, turning into a wheel. There was farther the furnace keep jacket, electrodes them from burn- with water ing around the *4 they stuck out put first in fast. When the electrodes were too twenty housing eighteen the to inches. of the end usually put in each furnace necessary to one new electrode was in new every day. expected put to watch them and Plaintiff was electrode, they put in a he would ones were needed. When he new required also which furnace, turn off the the new electrode, it, working. had been the next to he would He one at the end where be always began tending furnaces. instructed do this when he the to (Althaus), worked, “When Foreman under whom first said: he they I working operation, in were the furnace to the one on next any power. them ... I him make had repairs shut off the told not to . . . put in an until it the wall. electrode was shut off on duty That was the furnace tender.” Plaintiff testified that the duty to it was his turn off the “when the foreman wasn’t furnaces around;” him present, that when his foreman he asked about was off; turning thought them Pippen that he Foreman he had asked my about on previous other occasions. Plaintiff said: “It was duty . . . When he was when the foreman wasn’t around. Mr. present power off I would tell and had occasion shut the 965 and I had Pippen. my He was the foreman orders do as foreman In every a deposition, told me.” had testified that “on gone except this one” he had turned it off him- occasion ahead and However, hot, yon know, self. he said: “On this occasion I was sweaty, carbon, me I and all and it looked to like this as well as see, could in No. stuck farther than connected out usual when we carbon; always being a new I him anyway, but shut down but standing hepler present, my busy getting metal, out he come there, help my busy me. helper help When was he would come and me. working watching When I one furnaces he .was . power. foreman, thought . . Him I being I would ask permission.” p. injured, About two M. he day put on the had new' operated carbon the west furnace No. 3. He then end of long enough rocking, furnace metal in to melt the it and had it when put he found the electrode off in No. 2. He shut it down to burned a new electrode. No. at Furnace was also burnt out this time. present “Jack, Plaintiff said his him: foreman was and he asked you don’t think power putting we had better shut the No. while off 2?” the electrode No. Pippen But that Foreman said: “Hell, no; got time; already got we haven’t down, we two furnaces I ’’ you; go will Plaintiff attempted watch ahead. said then that he rocking; No. with No. 3 electrode furnace furnace sticking bring to do so -would the end of the electrode No. putting so close to the end he of the one was into No. that, practically together, apart;” be “not over inches six putting in facing right while the new electrode he was with his south hand under the left and his it so that left electrode hand over 3; arm and shoulder would nearest furnace No. that while together he was in that position, came the ends the electrodes so got shock, that he said knocked him the floor uncon- he holding pieces. scious and broke the he was three electrode into Pippen testify, Foreman did but it was shown he had left employ Plaintiff company. said he received medical at- company’s tention from doctor the same afternoon after the ac- go cident. Defendant’s evidence was that he did not to this doctor day following injury, report until the when the accident was signed by plaintiff following which contained the statement: “No. . .
One furnace burnt No. Three . out and was started power screwing in No. off in Three was on and No. Two—while (electrode) piece carbon Two, on another carbon struck *5 or Three, giving touched carbon on No. shock.” Defendant me a going contended that into current the electrodes was not dan- gerous ; only volts; that 90 it was a low tension current of and that by no one had ever been hurt it. electrical maintenance Defendant’s lighting man ordinarily testified that the current used for residences buildings and 110 amperage business was to 115 volts and that the 966 harmlessness tbe of made a demonstration He about the same.
was courtroom, while the cutting.,tbe wires by a current of such passed current so that holding them tried, and being was case brought lamps. was out light It body the courtroom through his came going the electrodes into testimony the current his that carrying 230 volts a current of through from wires transformers directly motors used 230-volt current ran into that this as a witness for Althaus, who testified Foreman the furnaces. rock shortage furnaces at the there was an occasional plaintiff, said that never, got while, one in a but that he got a shock once he (the elec- you “if it He touched him down. that that knocked trode) said you up shock;” “it will kind of touch you get a that would purpose;” by accident but not on had “touched them that he medical evidence had considerable got that he never hurt. Defendant really tending plaintiff not hurt. show that was evidence, at the demurrer to the Defendant contends that its plain because have been sustained ease, close of whole should unsafe, except work not place tiff’s that of was evidence showed his that he No. reason of own failure to shut off furnace his working guilty contributory as a of law negligence was matter of contention, 3 shutting No. how on without off No. Defendant’s ever, No. without plaintiff means that should have either shut off off, asking it; his he shut it foreman about or that should have order; him, in or that he should after he did ask violation of have in the under will refused to electrode these conditions. We contributory guilty neg not hold himself plaintiff that has of shown choosing ligence as a matter law not of these three alter one disclosed, natives. say, Nor will under that we the circumstances negligence plaintiff’s employer there was no for which could be showing liable. There been shocked was no had ever anyone strength or seen the current shocked or he knew unbelievable, used. unusual, does not seem so as to be that a explain present workman who would situation to his foreman was According testimony, or upon who came the scene. out, that, was furnaces, situation his three No. was burnt clear; temporarily whether for the rest afternoon is not going enough No. long had been to melt the metal it and was rocking, complete preparation therefore about to of the metal for which started; it been operated had could not be until a new put in, electrode was whether or there was not metal in it at the time was shown. Neither is what shown the effect moulten metal in No. be, if it We, turned off. was off, course, know that it would some, cool when the heat turned and that delay, extent, this would preparation some final the metal in it. It would seem to be a reasonable inference that delay operations by doubt whether turning
967 waiting in 2, delay operations off while he the electrode No. or 2 charge so No. until the metal was completely to poured melted and may of No. 3. That have been the reason he asked the foreman do, not, what to but whether was or think the we that it was for jury decide, to under these circumstances, asking whether directions from the foreman was thing a reasonable to do. says Plaintiff ask he did him if (which jury he did believe) right questions
had a then these arise: Did the foreman give negligent ? a And, something order if was it an order do so, obviously dangerous glaringly so reasonably prudent that a man Fogel it? not undertake v. 326 Co., Construction [Macklin (2d) 14; Mo. 31 S. W. 38, v. Sloan Polar Wave Ice & 323 Co., Fuel 363, Ingram (2d) 476; Mo. 19 S. W. v. Block 319 Co., Prairie Coal (2d) 644, 413, cited; Joseph Mo. S. W. and eases Lawhon v. St. Veterinary 44; City Laboratories S. W. Jewell (Mo.), v. Kansas Co., Bolt & 176, Upon authority Nut Mo. S. W. 703.] eases, questions we these hold that these were in jury for the this passing right case. In upon them, jury had the to consider that dangerous is electricity highly force; employer that invisible duty highest who uses it is exercising degree under the (Foster care to make its use safe v. K. & Ry. Co., C. C. St. J.
18,Mo. 26 W. 770, cited); he, and cases that who and those workmen, direct the work for position, are a better him, than his to know kind, safety and should know the appliances condition and equipment through used; employee justified which that an is in relying, upon extent, reasonable his employer’s superior knowledge; and, also, case the that this defendant’s was evidence ordinary passing to the effect that the current into the electrodes was jury not harmful. reasonably believe, they could if believed plaintiff’s testimony injuries, as to his either that there was on that occasion 3, more current than usual the electrodes of furnace No. harmless, that evidence, defendant’s that the usual current was negligence was In untrue. case, either it would been have charge foreman in employee place to order an fore into where the man knew or of proper the exercise could known, care have likely injure there was current him, which would be neither conclusively case appear does it this so obvious to guilty contributory negligence he would be as a matter of obeying law in the order. We hold that defendant’s demurrer correctly evidence overruled. assigns Defendant further as error the action of the court giving plaintiff’s 7, Instruction is as follows: jury “The opinions are instructed that witnesses experts merely are advisory binding 'jury; a/nd and! jury weight should accord to them such believe from all the facts and evidence, circumstances in the same are entitled receive.” give instruction. it is error to this be no can doubt There approved by has instruction been this exact says that
Plaintiff 650, 175 Mo. Ry. Co., v. Wabash cases. in earlier [Copeland court 185 Mo. M. 106; Markey L. & Railroad v. S. W. 662, 75 l. c. however, overruled were, W. These cases 84 S. 348, l. c. 61.] *7 28 W. 325 S. City, Mo. 125, v. Kansas in Scanlon by this court the sub this court en banc on opinion latest of is (2d) 84, which jury testimony binding (conclusive) on course, is no ject. Of vice is not controverted. The that its truth it admitted so is unless case, in the Scanlon is denounced which it instruction, this of testimony expert of opinion singles for comment “it out is something which is not to be treated as and classifies witnesses” inference from facts. expert an opinion An is evidence. as call ‘fact’ “which chose to by we lay witnesses things related Many ... all matters inference ‘opinion’ or only may be is or as no better like must be considered quality and the identity, measure, Wigmore Evidence, sec. 112-114, on opinions.” than 1919.] [4 draw necessary skill would possessing the a witness fact that “The force possesses probative such the facts from a certain" inference is the evidence that such inference as some justifies reception its 950, 64 W. Wheelock, 992, 333 Mo. S. v. correct one. [Young facts any testimony as to only The reason cited, l. c. and eases 957.] facts the correctness of the evidence of is admitted it is some is stated. case: court in the Scanlon As this stated conjecture inference guess but an when a mere opinion, “An data, adequate capacity requisite by experiential drawn one of per given by . . . data An inference drawn from
is evidence.
experience
qualified
by reason of
peculiarly
so
son who is
to do
no
less
fact. There is therefore
special
learning is no
skill or
testimony
the sense here used
logical
opinion
distinction between
Ed.),
(2
Wigmore
testimony.
Evidence
and so-called fact
on
[4
pre
pp.
The values of both are measured
100-125, inclusive.]
cisely the
standards.”
same
advisory.
merely
wrong
testimony is
wholly
say
It is
that such
testimony. The
competent
advisory
It
is
other
no more
than
and treatment
opinion
expert
upon
based
examination
of a medical
jury.
weight
its
is
v.
is
substantial evidence
[Kimmie
564;
(2d) 561,
66
l.
596,
334
S. W.
c.
Assn.,
Terminal Railroad
Mo.
363,
55; Spencer
260
O’Leary
Co., 303 Mo.
S. W.
v. Scullin Steel
353;
297
492,
317 Mo.
S. W.
Scanlon
Q.,
v.
O. & K. C. Railroad
(2d) 84;
125,
Cropper
Kansas
325
28 W.
v. Titanium
City,
v.
Mo.
737; note,
Pigment
78
L. R.
(C. A.),
(2d) 1038,
C.
47 Fed.
A.
Co.
823; 11
755;
733, p. 728,
22
sec.
R. C.
639,
78 A. L. R.
C. J.
sec.
16; Wigmore
Evi
7,
14, p. 586,
L.
sec.
on
574,
p. 584,
sec.
sec.
1920,
dence, 1081,
673; Wigmore, 115, 116,
sec.
secs.
1921.]
expert
advisory
is
testimony
remnant
er
is
of an
statement
theory
expert
testimony
about
and now discarded
roneous
O’Leary
Steel
away
banc broke
from in
v. Scullin
this court en
Mis
supra.
pertinent
For
statements about the earlier
Company,
Wigmore
An
Evidence,
early protest
note.
203,
souri cases see
against
is
kind of
instruction which
line with
this
the decision
Hoyberg
banc
this court
in the Scanlon
found in
v.
en
case is
Henske,
63,
78,
Wigmore points
l.
expert long “in testimony original persisting its form . hardly regarded jury, but as an evidence to the aid to A advisory. complete
court.” Thus, first, purely at and en lightening history expert testimony opin discussion of the and the rule mis past ion and erroneous theories about it which have bench 1929. Wigmore, led and bar will be secs. 1917 found argued that: “With brief evidence of them, jury what character before unless the cautioned and are told are, tendency jury be to their functions natural abdicate their functions and opinions consider themselves bound *8 experts and, undertaking of these consider without themselves to apply in evidence, opinions the shown these various the facts reach facts and their own conclusions.”
A 1081, complete argument answer to is found Wigmore, 673, section as follows: expert trying is not usurp function,
“The that could not and any, he trying usurp it, if would. He is not his error, because if merely witnesses, is common knowl- presenting the one of that of edge really knowledge. what it if usurp is not And he could not would, reject accept he jury may testimony because the still his and legal judge’s power, order, and no can opponent’s, not even the compel accept against them will. the witness’s statement their That danger jury system, there is hidden of no to the and no need invoking in its aid, rhetoric be it that will seen when is remembered logical necessity questions the hypothetical is same exactly the judge sitting jury. tribunal, without must Whatever the it separate premises conclusions, end and must wait till the it in, of trial and all both sides before it evidence on is determines premises what proved are opinions and therefore which have a factual basis.”
Plaintiff 64, Griffith, 392, cites Kunkel v. S. (2d) Mo. W. where this instruction same was held This not prejudicial. not does help plaintiff here, for several reasons. First: Kunkel The ease handed was down Division One before pronouncement en banc and the court in the Scanlon case the Scanlon is controlling. ease
Second: The Scanlon recognizes might cir- case there that be error, cumstances under although which such an instruction, would think that was Kunkel case prejudicial error. "We true be not holding was what court meant in that in that and we think that prejudicial. it have been true because the case not This was could merely Kunkel case cumulative opinions experts were thing effect certain opinions evidence. Their were to the that a oc an land and not as (land formed an accretion to the curred shore island) many eyewitnesses they testified exactly as observed it. Ordinarily, entirely error admis prejudicial it not to refuse merely testimony competent sion of when it is cumulative. otherwise v. Pacific Missouri Railroad Mo. W. 61, [Homan might prejudicial particular Therefore, it not be l. c. 624.] If such cumulative evidence an instruction. case to strike out it cer prejudicial entirely, it would not eliminate tainly something that. not than be to do less instruction, case,
Third: could not have been other- in this highly prejudicial wise than same that was in the for the reasons really Scanlon this case case, because the contested issue in was whether received some electrical but whether the shock injury enough any whether at shock was to cause and the time severe practically suffering the trial and effects of it, only testimony of its medical evidence defendant had was experts. testimony Plaintiff his own and electrical had the tes- timony of who had first examined him one-half a doctor two testimony years However, after showed the accident. doctor’s objective (he symptoms very way to the muscles said as little they “I couldn’t were left shoulder: swear arm softer”); got impression I smaller atrophied, were but thought it little more than he and whose evidence amounted to possible could caused certain ten- electric shock have feeling which in his derness and lack of he stated he found Defendant, on the other in addition its hand, examination. *9 harmless, testimony the experts’ electrical that the current had day testimony nurse, plaintiff of doctor and who treated the after the injury his shock who said that no evidence of an at and there time; doctors, that the two other examined and also evidence of who thoroughly X-ray plaintiff very by the and prior trial other they could evidence of methods and who testified that find no injury from an Their which could have resulted electrical shock. they the such as ivas further to effect that an examination evidence tissues if had made would reveal some destruction of nerves there or ill effects claimed been sufficient shock to cause the which resulted therefrom. instruction, in is well prejudicial ease,
The effect of this this argument following in by demonstrated the made brief: good necessity “A at the case like the one bar illustration of Am- giving of instruction one criticized here. Dr. an as the such qualifications brose, expert, medical disclosed in the defendant’s his only training not had had the best that United States he the could had London and Vienna afford, but studied at the greatest world, charge hospitals and was in then of universities the base war; during doctors, had at and defendant two other one qualified very strongly his ability, least of whom as to whereas the . . . profound had one Dr. doctor. Ambrose discloses knowledge gives subject given of and evidence which could be not by subject. except expert time, expresses At real the same he simply it so a child understand what his facts could are what and . . the conclusion is he . draws facts. The natural those side, inclination would men be to here are three say, on one medical possesses extraordinary one of whom at least qualifications, experi- just training, ence and while on the other side there was one doctor enough have practice who seems to been to school him to authorize all, and the-opinions that was about so on the side defendant’s settle ’’ the matter. argue Plaintiff’s counsel jury weight were entitled to to the and credibility testimony compared of these doctors with their but, by strongly authority own because it was backed and learn- ing, stated, easily understood, well and were not entitled have help given them by court weaken consideration to be jury by an giving stating merely advisory instruction that it was and binding City Independence (Mo.), on them. also v. Davis [See (2d) 95; S. W. v. (Mo.), Conduitt Trenton Gas & Electric Co. 21; 64 C. 579, prejudicial W. sec. J. effect 511.] undoubtedly case, of this instruction reflected in the verdict in this $500 was within ordinarily permitted maximum amount court a plaintiff to stand cases where has lost arm or an leg by amputation (see Jenkins v. Mo. State Ins. 334 Mo. Life (2d) 666, cited); 69 S. W. and cases plaintiff, by when this own back, went testimony, day on the of his and injury, finished work, plant afternoon’s eight continued work defendant’s thereafter, factory, planted nine months worked another crop corn, raised a hand, all winter farm worked one as a milking feeding livestock, cows, cutting, loading, hauling and un- doing loading chores; farm wood and other usual when there was showing certainty injury. no permanent reasonable that he had a suggest the case must be
Since retried we Instruction Ño. should be redrawn meet the criticisms made defendant. We do not think that it assumes facts but could made clearer that by using you it did “if phrases not do so such so find” “if any.” It would the instruction words also make clearer use the “to on” “to electrode rather than the words work on.” *10 always is specific allega- safer to make an than the instruction more general. tions pleadings, to make rather than it more The issues be a more submitted and usually narrows evidence usually requisite makes issues facts these statement of the specific object instructions should be to make jury. The clearer to the suggest that language can make them. We further issues as clear as correctly charged against technically defendant is not negligence place in reasonably safe a failure to furnish described as negligent to do giving of a order work, really the but is which to Schaum v. Southwestern unsafe manner. specific thing [See was not place 78 W. The Bell Tel. Mo. 439.] with furnaces turned off. done both this work to unsafe for Ferguson and remanded. judgment the cause reversed and is concur. Sturgis, CC., C., adopted by Hyde, foregoing opinion CURIAM: —The
PER judges All the concur. opinion of court. as the Appellant. Marguerite ciation, Asso v. Railroad Corbett Terminal (2d) 97. 82 S.W. April 17, One, 1935. Division