American Agr. Chemical Co. v. Hogan

• Decision Date: 21 April 1914
• Docket Number: 1011.
• Citation: 213 F. 416
• Court: U.S. Court of Appeals — First Circuit
• Parties: AMERICAN AGRICULTURAL CHEMICAL CO. v. HOGAN.

213 F. 416

AMERICAN AGRICULTURAL CHEMICAL CO. v. HOGAN.

No. 1011.

United States Court of Appeals, First Circuit.

April 21, 1914

[Copyrighted Material Omitted]

Richard Stone, of Boston, Mass. (Robert B. Stone, of Boston, Mass on the brief), for plaintiff in error.

George R. Farnum, of Boston, Mass. (Hannigan & Fox, of Boston Mass., on the brief), for defendant in error.

Before BINGHAM, Circuit Judge, and BROWN and MORTON, District Judges.

BROWN District Judge.

This writ of error is for review of rulings of the District Court in an action for negligence, wherein the plaintiff, Hogan, had a verdict. The previous opinion of this court may be found in 195 F. 494, 115 C.C.A. 404.

The chemical company, plaintiff in error, is a manufacturer of fertilizer. Its process includes the mixing of phosphate rock and sulphuric acid, and involves chemical reaction. From the mixer the material is dropped into a den or bin below the mixer, and there accumulates. Subsequently a door in the den is opened, and the laborers, with picks and forks, work the material through an opening in the floor, so that it drops into hand carts below.

Hogan, the plaintiff, while engaged in this work as a laborer, was severely burned by the material upon which he was working.

The declaration is in two counts; the first alleging:

'Said negligence consisted in ordering him to work in a place which, by reason of the presence of a large quantity of acid, was dangerous, and known, or should have been known, by the defendant to be dangerous; said injury was directly caused by the escape of said acid, which, coming in contact with the plaintiff's body, burned his legs, abdomen, and back.'

The second count alleges:

'That the said defendant negligently put him to work in a place unsafe because of the risk of the collapse and fall of dangerous substances, and carelessly failed to instruct or warn him of and concerning the aforesaid dangers, or to promulgate proper rules, or to take measures to protect him from the said dangers while working in said place.'

It was not contended by the defendant that the risk of burning by acid was an ordinary risk of the business or a risk known to or assumed by the plaintiff.

If, as a matter of fact, the material was dangerous by reason of the acid that it contained, and the plaintiff was ordered to work upon the material while in such condition, he was exposed to an unusual and extraordinary risk, and the jury was justified in finding the defendant negligent.

The plaintiff testified that while he was at work upon the pile of material in the ordinary way, and without undermining it, the stuff slipped out of the pile and covered him to the waist, that his legs went into the opening in the floor, and that the stuff was 'steamy, hot, and gassy-- very hot. ' The plaintiff contended that if the stuff had been in proper condition to work it would have been impossible for the material to collapse in this way.

The defendant denied not only that the material was dangerous as containing acid, but also that there was any risk of collapse unless the plaintiff was negligent in undermining the material, thus causing it to fall upon him. The defendant also contended that, while the material was not dangerous by reason of acid, it was hot, and that the plaintiff well knew this, and, in spite of warning, undermined the material, and thus brought it down upon himself.

There was a decided conflict of testimony upon the questions whether the plaintiff's burns were caused by acid, and whether the material was in such condition as to be likely to fall even if properly handled. An examination of the testimony, however, shows that the trial judge was clearly right in denying the defendant's requests for the direction of a verdict. There was testimony which entitled the plaintiff to go to the jury both upon the question whether the burns were due to acid and upon the question whether the material was in such condition as to involve the risk of collapse.

There was considerable testimony to the effect that the burns were due to acid. Two physicians and a professor of chemistry testified for the plaintiff upon this subject, and one of the physicians testified as to the character of the scars while they were exhibited to the jury, and gave his opinion as to their origin. The defendant objects to the expert opinion as to whether the scars were caused by acid burning, upon the extraordinary ground that after the experts had given a full and complete description of the injuries the addition of their opinion, based entirely upon the physical situation of the scars, was error, for the reason that matters of common observation and of common knowledge are for the jury alone.

That the character of wounds or the effect of acid on human flesh are matters of such common knowledge as to render inapplicable the ordinary rule which permits a doctor to give his opinion as to the cause of a wound or other physical injury is a proposition so clearly without merit that it needs no discussion. Nor is it an objection that the expert is asked a question involving an inference to be drawn or a point to be decided by the jury. This unsound objection, however, is so common that it may be useful to point out that in Transportation Line v. Hope, 95 U.S. 297, 298 (24 L.Ed. 477) it was said of the testimony of an expert:

'It is not an objection, as is assumed, that he was asked a question involving a point to be decided by the jury.'

The objection to the testimony of Prof. Gill, that the material after a certain time would be safe to work, on the ground that after the conditions had been described by the expert it was for the jury to say whether or not it was safe, and not for a chemist, involves this erroneous assumption. Furthermore, the objection is trivial, in view of the fact that the statement of the expert was in no wise prejudicial to the defendant.

Error is also assigned to the admission against objection of testimony given by Dr. Drake at the former trial, for the purpose of contradicting his present testimony. It was objected that the attention of the witness had not been called to his previous statements in order to lay a foundation for contradiction. While this is generally required, it appears to be unnecessary under the Massachusetts practice, except when a party seeks to contradict his own witness. See cases collected in Mass. Digest, vol. 7, cols. 15,787, 15,788; Mattox v. United States, 156 U.S. 237, 245, 252, 15 Sup.Ct. 337, 39 L.Ed. 409; Wigmore on Evidence, Sec. 1026 and section 1028, note 1, p. 1193. Ordinarily the rules of evidence and the law of evidence of the state prevail in the federal courts sitting within the limits of the state. Ryan v. Bindley, 1 Wall. 66, 17 L.Ed. 559; Bucher v. Cheshire R. Co., 125 U.S. 555, 583, 8 Sup.Ct. 974, 31 L.Ed. 795; Ex parte Fisk, 113 U.S. 713, 720, 5 Sup.Ct. 724, 28 L.Ed. 1117; Nashua Savings Bank v. Anglo-American Co., 189 U.S. 221, 228, 23 Sup.Ct. 517, 47 L.Ed. 782. In Conrad v. Griffey, 16 How. 38, 47 (14 L.Ed. 835), the rule as generally established is applied, with the remark, 'The rule of evidence is a salutary one, and cannot be dispensed with in the courts of the United States.'

But that case did not involve the existence of a well-established state practice to the contrary.

We see no sufficient reason for not following the state rule. But even were the plaintiff able to show technical error in admitting the testimony, this is not enough. The plaintiff in error must not only show an erroneous ruling admitting testimony, but that the testimony admitted was prejudicial...