Bruce v. Beall
| Decision Date | 16 June 1897 |
| Citation | 41 S.W. 445 |
| Parties | BRUCE et al. v. BEALL. |
| Court | Tennessee Supreme Court |
Action by Frank J. Beall against W. S. Bruce & Co. for personal injuries caused by defendants' negligence. There was a judgment for plaintiff, and defendants bring error. Reversed.
J. R. Flippin and E. E. Wright, for plaintiffs in error. Percy & Watkins, for defendant in error.
The defendant in error was an employé of the plaintiffs in error, and, while engaged in the performance of a duty to his employer, was frightfully injured by the fall of a freight and passenger elevator in the storehouse of plaintiffs in error. At the time of the accident, the defendant in error was on the elevator, and the fall was occasioned by the sudden breaking of the two wire cables by which it was suspended. To recover damages for the injury thus sustained, this action was instituted. In his declaration, the plaintiff below alleges that the elevator was "so carelessly and negligently constructed and maintained, and that the cables suspending it had been thirteen years in use, and were so old and rusted, and that the wooden guides attached were so worn and rotten, and the safety appliance intended to prevent a fall was so defective and out of repair," that while the plaintiff was riding on it, and discharging a duty, in obedience to the orders of his employers, the cables, together with the safety catches and other appliances, broke, and the elevator fell a distance of five stories to the basement floor beneath, carrying plaintiff with it, and inflicting the injuries complained of. It was further alleged that these injuries resulted from the flagrant negligence of the defendants below in the construction and maintenance of the elevator and its appliances. To this declaration a number of pleas were put in, among them being that of not guilty. On the trial of the case there was a verdict of $15,000 for the plaintiff below, from a judgment on which an appeal has been prosecuted to this court. Many errors are assigned on the action of the court below. Only a few of them, however, will be noticed.
1. Beall, the plaintiff below, while being examined as witness in his own behalf, was permitted, over the objection of the defendants below, to say that, before the injury complained of, he "could read, and was studying medicine, and was going to school, but that, since it occurred, he could not read." It is now alleged that this was incompetent. However, it was not averred in the declaration that this special injury resulted from the negligence of the defendants below. The rule is well settled that, to recover for special damages, they must be stated in the declaration. 1 Suth. Dam. p. 763; 2 Greenl. Ev. (14th Ed.) p. 254; Burson v. Cox, 6 Baxt. 360. And, if it appeared that this evidence had been offered for the purpose of resting upon it an independent claim for damages, it certainly would have been incompetent. But it is clear that this was not the purpose of the counsel of plaintiff below, but that this evidence was offered with the view of throwing light on one of the questions in controversy, to wit, the extent of plaintiff's injuries, among which the declaration averred spinal concussion. No effort was made to show any pecuniary loss on account of the plaintiff's inability to study or to go to school, and, in the absence of such effort or claim, it was competent for it to go to the jury, as tending to prove the seriousness of the injuries complained of. Mills Co. v. Smith, 69 Miss. 299, 11 South. 26; Railroad Co. v. Hicks, 5 Sneed, 427.
2. In the process of the trial, one Dr. Galtman was introduced as a witness, and he was permitted to submit to the jury an X-ray photograph taken by him, showing the overlapping bones of one of plaintiff's legs, at the point where it was broken by this fall. This was objected to by the defendants' counsel. This picture was taken by the witness, who was a physician and surgeon, not only familiar with fractures, but with the new and interesting process by which this particular impression was secured. He testified that this photograph accurately represented the condition of the leg at the point of the fracture in question, and, as a fact, that by the aid of X rays he was enabled to see the broken and overlapping bones with his own eyes, exactly as if, stripped of the skin and tissues, they were uncovered to the sight. We might, if we so desired, rest our conclusions on the general character of the exceptions taken to this testimony, but we prefer to place it on the ground that, verified by this picture, it was altogether competent for the purpose for which it was offered. New as this process is, experiments made by scientific men, as shown by this record, have demonstrated its power to reveal to the natural eye the entire structure of the human body, and that its various parts can be photographed as its exterior surface has been and now is. And no sound reason was assigned at the bar why a civil court should not avail itself of this invention, when it was apparent that it would serve to throw light on the matter in controversy. Maps and diagrams of the locus in quo drawn by hand are often used to aid a judge or a jury to an intelligent conception of the matters to be determined, and no one would think of questioning the competency of the testimony of a witness who stated that he knew the map or diagram to be entirely accurate, and who then used it to illustrate or make plain his statement. The pictorial representation of the condition of the broken leg of the plaintiff gave to the jury a much more intelligent idea of that particular injury than they would have obtained from any verbal description of it by a surgeon, even if he had used for the purpose the simplest terms of his art. We have not had our attention called to any case bearing on this question, save that of Smith v. Grant, tried in the First district court of Colorado, and reported in the Chicago Legal News of December, 1896; but photographs showing exterior surfaces have been admissible in numerous cases. They have been held competent on the question of identity of persons (Udderzook v. Com., 79 Pa. St. 340; Cowley v. People, 83 N. Y. 464; Luke v. Calhoun Co., 52 Ala. 118; Ruloff v. People, 45 N. Y. 213), and to identify premises (Church v. City of Milwaukee, 31 Wis. 512; Blair v. Pelham, 118 Mass. 421), and in cases of handwriting (Marcy v. Barnes, 16 Gray, 161). It is not to be understood, however, that every photograph offered as taken by the cathode or X-ray process would be admissible. Its competency, to be first determined by the trial judge, depends upon the science, skill, experience, and intelligence of the party taking the picture and testifying with regard to it, and, lacking these important qualifications, it should not be admitted; and even then it is not conclusive upon the triors of fact, but is to be weighed like other competent evidence.
3. The plaintiff below placed on the stand, as expert witnesses, one Garside and one Holroyd, and it is assigned for error upon the part of the trial judge:
First. That he permitted these parties to testify without having first qualified as experts. A sufficient answer to this particular objection would be "that the determination of the question whether a witness offered has the requisite qualifications for an expert, rests largely in the discretion of the trial judge, and when, upon a preliminary examination, he has ruled that he has properly qualified himself as such, except in a case of clear abuse of his discretion, his conclusion in this respect would not be disregarded by a revisory court." Rog. Exp. Test. pp. 24, 25; Powers v. McKenzie, 90 Tenn. 167, 16 S. W. 559. But, independent of this answer, an examination of this record shows that they have had a great many years' experience with machinery of various kinds, and especially with elevators and wire cables, and that their experience thoroughly qualified them as experts in this case.
Second. The most serious objection, however, is that urged to the character of the testimony which plaintiff below was permitted to educe from these experts for the consideration of the jury. It was undisputed that the defendants below had caused to be erected this elevator about 11 years before the accident occurred, and that the cable wires which broke, and thus caused its precipitation, had been continuously in use during that period of time. To each of these expert witnesses, plaintiff's counsel put a hypothetical case, embracing the facts that these cables had been in almost daily use, lifting and lowering heavy weights for a number of years; and they were asked the effect of such use upon them, and to this each answered that the strain and friction would produce crystallization of the metal in them, which would make them brittle, and greatly increase their liability to break. Each one of these witnesses fixed the life of a cable under the facts in the hypothetical case at from five to seven years. After making these statements, Garside was permitted to say, in answer to certain questions propounded to him by plaintiff's counsel, that a continuous use of cables, under the conditions embraced in the hypothetical statement, was very dangerous, and that at the end of five years' service he would, if controlling them, cause them to be renewed. Objections were made to this testimony, but the trial judge failed to make a ruling upon these objections, and the counsel omitted to move that the questions and answers be stricken from the record (2 Elliott, Gen. Prac. § 585); and hence plaintiffs in error are in no condition to maintain their assignment of error upon the admission of this testimony of Garside.
It is otherwise, however, as to the witness Holroyd. In his examination the bill of exceptions shows as follows: ...
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