Chicago, R. I. & P. Ry. Co. v. Hale

• Decision Date: 14 February 1910
• Docket Number: 3,093.
• Citation: 176 F. 71
• Parties: CHICAGO, R.I. & P. RY. CO. v. HALE.
• Court: U.S. Court of Appeals — Eighth Circuit

176 F. 71

CHICAGO, R.I. & P. RY. CO. v. HALE.

No. 3,093.

United States Court of Appeals, Eighth Circuit.

February 14, 1910

Syllabus by the Court.

The general rule is that witnesses must state facts, and may not state their opinions.

In an action for damages for personal injury, the profits of a business enterprise in which are combined capital and labor do not constitute a sound basis for estimating the earning capacity of him who furnishes the labor.

H. made a contract with a railroad company to load cars with gravel in a gravel pit. The railroad company placed the empty cars on a spur which extended down into the gravel pit on an inclined plane. H. examined the brake upon one of them, and it appeared to be sound, and he then undertook to lower two of them into the pit by the use of the brake. The brake was so inefficient that it did not retard the cars at all and he was injured.

Held there was no error in the refusal of the court to instruct the jury for the defendant.

A general exception which specifies no ground to a charge or a portion of a charge to a jury that embodies several propositions of law is futile if any of the propositions are sound.

Where a request for an instruction contains several propositions of law, any one of which is unsound, it is not error to refuse it.

M. A Low, C. O. Blake, H. B. Low, and W. C. Stevens, on the brief for plaintiff in error.

R. N McConnell and B. M. Parmenter, on the brief for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and McPHERSON, District judge.

SANBORN Circuit Judge.

The plaintiff below, John R. Hale, made a written agreement with the Chicago, Rock Island & Pacific Railway Company to load gravel into its cars at certain traps on a spur track which extended down into its gravel pits near Lawton, in the state of Oklahoma, for 15 cents per cubic yard. The spur connected with the main track, and ran down into the gravel pits upon an inclined plane a distance of about 1,200 feet. In these pits there were traps for loading the cars. The practice of the railroad company was to set several empty cars on the spur track upon the brink of the pits so that the plaintiff could let them down to the traps from time to time as he wanted to load them without the use of an engine. When the loading of a car was about completed at one of the traps on the 27th day of September, 1905, the plaintiff went up to the place where there were 10 or 12 empty cars upon the spur track for the purpose of letting some of them down the inclined plane, a distance of about 100 feet, to the trap that he might load them. He found a large heavy car with a brake that upon careful examination appeared to be good and a small car just back of it whose brake staff was broken. He separated these cars from those behind them, mounted the larger car, started the two cars down the incline, and then by the use of a stick and with his hands he tried in vain to retard and control their motion down the hill, and the forward car struck the loaded car with such violence that it threw him against a timber, and seriously injured him. He brought an action against the railway company, and recovered a judgment which this writ was sued out to reverse.

The plaintiff testified that he had been working at the gravel pits letting down cars as occasion required for two months; that he had safely lowered two cars down the spur track before this occasion where he had one good brake and one that was useless. It is specified as error that, after the plaintiff had given this testimony, the court permitted him to make the following answer over the objections of the defendant that his testimony was incompetent, immaterial, irrelevant, that no proper foundation was laid for it, and that the question called for the conclusion of the witness:

'Q. I will ask you now whether based on your experience and observation there at the gravel bed two cars could be handled safely down that incline when one brake was a good one and the brake on the other car was a bad one?

'A. Yes, sir; we took one good car and handled a bad one, let two down at once.'

The general rule is that witnesses must testify to the facts within their knowledge, and that they may not state their opinions. But there is a well-established exception to this rule to the effect that the opinions of witnesses who possess peculiar skill or knowledge may be received when the facts are such that persons without such skill or knowledge, and presumptively the jurors, are likely to prove incapable of forming a correct judgment relative to the matter in hand without the aid of such opinions. Chicago Great Western Ry. Co. v. Price, 97 F. 423, 426, 38 C.C.A. 239, 242; Lake v. Shenango Furnace Company, 160 F. 887, 894, 88 C.C.A. 69, 76; United States Smelting Co. v. Parry, 166 F. 407, 411, 92 C.C.A. 159, 163. The jurors in this case who were undoubtedly without the special knowledge which the witness had of the grade of the spur track and of the operation was two cars down the incline with a single brake were incapable of forming a correct judgment whether or not such a method of operation was reasonably safe while the experience and knowledge of the plaintiff enabled him to do so. His opinion, therefore, fell under the exception to the rule, and it was properly received in evidence.

He testified that he resided on a farm at the time of the accident; that for three years before it he had not been in any business particularly; that he had been looking after the work of loading the cars for the railroad company in their gravel pits at this place for about two months; that, when he was short a man, it was his habit to operate a wheeler or to do any work that it was necessary to have done; that he had been engaged in contracting with various parties for the performance of work for about 20 years; and that he had worked with and in the place of his men in the same way during that time that he was doing when he was engaged in the performance of this contract. It is specified as error that in this state of the record the court permitted the witness over the objections of the defendant to answer these questions:

'Q. I will ask you if you know what was

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