Bemis v. Cent. Vt. R. Co.

• Decision Date: 27 April 1886
• Citation: 58 Vt. 636,3 A. 531
• Court: Vermont Supreme Court
• Parties: BEMIS v. CENTRAL VT. R. CO.

3 A. 531

58 Vt. 636

BEMIS

v. CENTRAL VT. R. CO.¹

SUPREME COURT OF VERMONT.

Filed April 27, 1886.

Exceptions from county court, Windham county.

This was an action on the case brought to recover for injuries to plaintiff, caused by the fall of a crane at the depot of the Brattleboro & Whitehall Railroad Company, at Townshend. Plea, general issue. Trial by jury, March term, 1885, of the county court, Windham county; Walker, J., presiding. Verdict for defendant. Exceptions by plaintiff. The evidence on the part of the plaintiff tended to show that the defendant had erected a crane at its depot in Townshend, for the purpose named in the declaration, and maintained said crane for the purposes aforesaid, and had the exclusive care and management of the same and its repairs; that on the day of the accident the said crane was insufficient and out of repair, and the plaintiff was using the same in unloading a block of soap-stone from his sled, as freight to be loaded on the defendant's cars, and that while so using said crane, and by reason of such insufficiency and want of repair, it broke and fell, and, in falling, its boom struck the plaintiff, inflicting the injuries complained of; that the plaintiff, in the use of the crane, was in the exercise of proper care and prudence; that the mast of the crane, at the time of the accident, was out of perpendicular, and that the iron of one of the braces, where it was attached to the mast, was of poor quality and weak; that the accident occurred when he was raising a stone of the weight of 3,600 pounds, with one assistant, and that the boom attached to the mast swung around and broke, and caused the accident; that when the crane was in proper repair the mast was perpendicular. The evidence on the part of the defendant tended to show that, at the time of the accident, the crane was in good repair, and of sufficient capacity for the use that it was intended; and that the handling of stones of twoton weight or thereabout was not proper for the use of two men; and that the accident was caused, not from an insufficiency or want of repair of the crane, but because it was not properly operated. The other facts appear in the opinion.

L. M. Read, for plaintiff.

The opinions of mechanics and workmen are not admissible as to matters not of technical skill, and which may be decided by the jury. Lawson, Exp. Ev. rule 24, p. 94; Clifford v. Richardson, 18 Vt. 626; Buxton v. Potter's Works, 121 Mass. 446; Hopkins v. Railroad Co., 78 Ill. 32; Amstein v. Gardner, 134 Mass. 4; Higgins v. Dewey, 107 Mass. 494; Weeks v. Lyndon, 54 Vt. 638; Evarts v. Middlebury, 53 Vt. 626; Crane v. North field, 33 Vt. 124; Eraser v. Tupper, 29 Vt. 409; Fulsome v. Concord, 46 Vt. 140; Lester v. Pittsford, 7 Vt. 158. All the above cases were decided on the ground that the subject of inquiry was one of common knowlege, not depending upon skill or science, and which the jury were competent to pass upon without the aid of experts. The opinions of professional men are evidence as to matters which relate to their profession, and such subjects only, and this rule applies to mechanics as well as to any other profession or business. Brooks v. Jenkins, 3 McLean, 432, 447; Crane v. Northfield, 33 Vt. 124; Lincoln v. Barre, 5 Gush. 590. All the witnesses were permitted to testify their opinion as to what was reasonable care and prudence in the use of a crane. If they were experts at all, they were not experts upon what constituted reasonable care and prudence. A witness offered as an expert cannot establish a duty, failure to perform which is negligence. Kitteringham v. Railroad Co., 17 Reporter, 334. In this case the effect of using the crane in the manner alleged should have been shown, and the jury allowed to judge upon the question of negligence. Bryant v. Central Vt. R. Co., 56 Vt. 710.

Martin & Eddy and C. B. Eddy, for defendant.

As was stated by the court at the trial, the plaintiff's case goes upon the ground of negligence on the part of the defendant road; that they did not maintain a sufficient crane for the purpose for which it was designed. To do this they must erect a machine as was at that time of an approved pattern, and of such kind and character as would be reasonably safe. The first question that arises is, was the construction of the crane and its method of use subjects of legitimate expert testimony? On questions of science or skill, or relating to some art or trade, persons instructed therein by study or experience may give their opinions. Opinions of ordinary witnesses, derived from observation, are admissible in evidence when, from the nature of the subject of investigation, no better evidence can be obtained. The opinions of farmers and agriculturists are admissible in matters in issue which are peculiarly within the knowledge of persons of their occupation. Mechanics, artisans, and workmen are experts as to matters of technical skill in their trades. Railroad men are experts as to questions of railroad management. Upon questions relating to art or science, opinions of persons who have made the subject-matter of inquiry the object of particular study and attention are admissible. Lawson, Exp. Ev. 2, 3, 5, 13, 70, 86, 159. When a witness has had the opportunity of personal observation, and the facts and circumstances which lead the mind of the witness to a conclusion are incapable of being detailed and described so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is allowed to give his opinion. Peck, J., in Cavendish v. Troy, 41 Vt. 108; Clifford v. Richardson, 18 Vt.620; Bates v. Sharon, 45 Vt. 481; Dean v. McLean, 48 Vt.412; Redfield, J., in Smith v. Miles, 15 Vt. 249; Fulsome v. Concord, 46 Vt. 135. The qualifications of a witness to testify as an expert is the question for the trial court, whose decision is not generally reviewable. Lawson, Exp. Ev. 236, and cases there cited. If it appears that the witness has any claim at all to the title of an expert, the court of error will not reverse because his experience is not sufficiently special. Delaware, etc., S. B. Co. v. Starrs, 109 Pa. St. 37. Where the evidence of the witness does not conclusively show his skill, but such skill is matter of fact to be inferred from the testimony, the finding of the court is conclusive. Wright v. Williams, 47 Vt. 222; Perkins v. Stickney, 132...