65 Minn. 337 | Minn. | 1896
These actions, growing out of the same accident, were tried separately, but on appeal were argued and submitted together, and can be considered and disposed of in the same way. The one in which Mrs. Sneda, as administratrix, is plaintiff, was brought to recover damages for the death of her husband, caused, as she claims, by defendants’ negligence when constructing a cistern wherein the deceased was employed by them as a brick mason, while that in which Nulas is plaintiff was brought to recover for injuries received by him at the same time, while he was working for defendants as a common laborer. At the conclusion of the trial of the Sneda case the court directed a verdict for the defendants, and she appeals from an order denying her motion for a new trial. Nulas had a verdict in his favor, and defendants appeal from the refusal of the court to grant them a new trial.
It is necessary that a very full statement of the facts be given. Defendants were contractors and builders, and in 1894 entered into a contract with the owners to do certain specified work in and about the convent buildings in the city of Winona. They were also to do such other or extra work as might be ordered by the superintending architect of the owners, who were to furnish all materials. As extra
The defendants first caused the earth to be removed where the cistern was to be constructed, leaving the sides of the excavation thus made, sloping so as to be self-sustaining, and to the depth of eight or nine feet. In the center and on the bottom of this excavation, defendants built a circular wooden ring, about 16 feet in diameter, eight inches thick at the top, eight inches deep, and brought to an edge at the bottom, perpendicular on the outside, and caused an eight-inch circular brick wall to be laid on the top of this ring, flush with the outside thereof, thus starting the brick and cement wall of the proposed cistern. After building this circular wall up to a height of several feet, defendants caused the earth to be filled in on the outside of it. The building of this wall was continued until it was 14 inches above the surface of the ground, the plan being to cause the ring to settle and cut its way down as the excavation deepened. When the cistern and wall had been thus sunk to a depth of about 12 feet, the top of the wall having been kept about 16 inches above the surface of the ground, the excavation became more difficult, and could not be carried on so as to cause the ring and wall to settle as fast as the masons were laying the brick, and it became necessary for the masons to wait for the excavation. For this reason, about two days before the accident, defendants laid off the two brick masons (the deceased and one Stanek), and proceeded personally, in the absence of the masons, to excavate the cistern and sink the wall in the manner described.
At the time the masons left the work the cistern wall was moving downward as the excavation proceeded, in the proper manner; but after they had goné, and defendants had proceeded with the sinking of the cistern and wall about 16 inches, the whole wall “hung,” and refused to settle any further, supposedly on account of the lateral pressure of the earth around and upon the outside. The defend
The only information either of the masons had 'as to what had been done while they were absent was such as they could have gathered from the appearance of the wall, so far as appeared on the trial. It also appeared that the duties of the architect were supervisory. He furnished the plans, and, as the representative of the owners of the premises, ordered defendants to do this particular job of work under the extra clause in their contract. He also made frequent visits to the work, as might be expected, and at times advised with defendants and the workmen. But the latter were employed by, and were wholly under the control of, the defendants, — responsible to them ■alone, and not in any manner to the owners. Although in the Kulas case the court submitted to the jury the question whether or not the workmen were servants of the defendants, or of the owners of the premises, there was, on the evidence, no such question in the case. Undoubtedly, the relation of master and servant existed between defendants and the workmen.
In the Kulas case the court submitted to the jury the question of defendants’ negligence. This was correct, for the generru duty of a
What has been said in regard to the question of negligence on the part of defendants applies to both cases; for, on the facts, no sufficient distinction can be pointed out, arising either from the testimony, or from the fact that Sneda was a skilled brick mason, while Hulas was a common laborer. On this question the Sneda case should have been submitted to the jury; for it is only when there is an entire absence of testimony tending to establish a master’s negligence that a court can order a nonsuit.
It is also urged by defendants’ counsel that all of the workmen assumed the risk, and therefore no recovery can be had in either case. A servant assumes the ordinary risks of his employment,' — such as are reasonably necessary and incidental to it, including negligence of
In the-Sneda case it is urged that his administratrix cannot recover, because he removed the braces, and was therefore guilty of contributory negligence. In the first place, the jury might have found from the evidence that they were removed by express direction of one of the defendants; and, second, the court could not say, as a matter of law, that this removal caused the wall to collapse. The cause of the accident was an open question, and for the jury to determine. It is also claimed that as Sneda and Kulas were fellow servants, and the accident was caused by the removal of the braces by the former, the latter cannot recover. We have already answered this contention. It follows from what has been said that the trial court erred when it directed a verdict for defendants in the Sneda case, and that a new trial must be had.
We now reach a consideration of certain rulings made by the court when receiving testimony in the Kulas case. The questions to which defendants’ counsel made objections were all of the same general character, and called for opinions from the witnesses as to the sufficiency of the wall in respect to thickness alone, — it being admit- ■ ted that the materials used were of excellent quality, and well put together, — and whether, considering the undisputed facts, a wall
The preliminary question whether a witness offered as an expert has the necessary qualification is for the court, and is largely within its discretion. And in some states it is held that under no circumstances will the exercise of this discretion be reviewed. 1 Greenleaf, Ev. (15th Ed.) § 440, and note c. All of the witnesses were shown to be, to some extent, qualified to express opinions on the subject concerning which they were questioned, and were clearly brought within the rule first above stated, which we regard as the proper one.
The general rule laid down in respect to the admission of expert opinion evidence is that the opinions of witnesses possessing peculiar skill are admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance. On questions of science, skill, and trade, or others of the like kind, persons of skill may not only testify to facts, but are also permitted to give their opinions in evidence. 1 Greenleaf, Ev. § 440, note 4. See, also, Sowers v. Dukes, 8 Minn. 6 (23). As cases bearing upon the admissibility of expert testimony with respect to the strength and sufficiency of the cistern wall, we cite Claxton’s Admr. v. Lexington & B. S. R. Co., 13 Bush (Ky.) 636; King v. New York C. & H. R. R. Co., 72 N. Y. 607; Evarts v. Town of Middlebury, 53 Vt. 626; Bemis v. Central Vt. R. Co., 58 Vt. 636, 3 Atl. 531; Pope v. Filley, 9 Fed. 65. The witnesses had superior skill and knowledge as to the resisting powers of a brick wall imbedded in sand in close proximity to great weight, and of what thickness it should be to sustain the pressure. Inexperienced men, such as ordinary jurors, were not likely to prove capable of forming a correct judgment upon such a subject without assistance from the skillful and experienced. There was no error in the rulings challenged by the last seven specifications of error.
The order refusing a new trial in the Sneda case is reversed, and a like order in the Kulas case stands affirmed.