78 Ark. 147 | Ark. | 1906
(after stating the facts.)
Conceding, as this does, that a handcar is such a machine as requires expert testimony to determine what would be the effect of operating a defective one and what would be a defect in any particular condition of the car, we must say that the witnesses, in our opinion, have sufficiently qualified themselves to give expert testimony. The record does not warrant the conclusion that a handcar was such a complicated machine that great length of time employed in the use and. operation thereof was necessary in order to enable one to understand its various parts, whether they were defective or not, and what would be the consequences of the operation of a defective one. Orear had run a handcar “off and on” for about three years, and Thompson had about fifteen or twenty years’ experience in operating cars. He could take one to pieces, and put it together again. We very much doubt whether any peculiar skill, or special habits of study, or any unusual knowledge was necessary in order to master the details of handcar machinery and its operation. But, if so, then Orear and Thompson showed sufficient familiarity and knowledge of the subject-matter to entitle them to testify as experts, and their testimony was properly admitted.
Instruction number three given by’the court was defective in form, but appellant did not ask to have it corrected by suggesting the proper qualification. The exact point covered by this instruction is ruled by St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255.
The court did not err in refusing instruction number six asked by appellant. The instruction was abstract and misleading. Besides, it leaves out all knowledge on the part of Hopkins of the defects mentioned and the danger to be anticipated in the use of such defective machinery. There was no evidence that the handcar was run too fast.
The court properly refused to give an instruction directing a verdict for appellant. The case was one for the jury upon proper instructions, and there is nothing in the ruling of the court in giving or refusing instructions of which appellant can complain.
We need riot again discuss the doctrines of assumed risks and contributory negligence presented by some of the charges, for the whole subject has been gone over exhaustively by us in the recent case of C., O. & G. R. Co. v. Jones, 77 Ark. 367. Nothing remains except to apply these principles to the facts of each case as they arise where these questions are involved. In addition to the authorities cited by Judge Riddick, I wish to refer, for the benefit of those who may be interested in investigating these subjects further, to the case of Limberg v. Glenwood Lumber Co., 49 L. R. A. 33, and the elaborate notes thereto.
The question was for the jury. The evidence was conflicting as to whether or not there were defects in the handcar which appellant knew or by the exercise of ordinary care should have known.
For the error in admitting this testimony and refusing on motion afterwards to exclude it, .the judgment is reversed, and cause remanded for new trial.