Conley v. Portland Gaslight Co.

• Decision Date: 16 May 1904
• Citation: 99 Me. 57,58 A. 61
• Parties: CONLEY v. PORTLAND GASLIGHT CO.
• Court: Maine Supreme Court

58 A. 61

99 Me. 57

CONLEY

v. PORTLAND GASLIGHT CO.

Supreme Judicial Court of Maine.

May 16, 1904.

(Official.)

Exceptions from Supreme Judicial Court, Cumberland County.

Action by Henry J. Conley, administrator, against the Portland Gaslight Company. Judgment for plaintiff. Motion and exceptions by defendant. Exceptions sustained.

Action at common law to recover damages for negligence resulting in the death of the plaintiff's intestate, caused by an explosion of gas August 11, 1900, at the defendant's works in Portland, and alleging that death was not immediate, and that it was attended with conscious suffering.

The Jury returned a verdict for the plaintiff in the sum of $7,500. The defendant filed a general motion for a new trial, and was also allowed exceptions, which appear in the opinion. The court, having sustained the exceptions, did not consider the motion for a new trial.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

D. A. Meaher, for plaintiff.

A. P. Moulton, for defendant.

POWERS, J. This is an action to recover for injuries alleged to have been caused by the negligence of the defendant in the management of its works at its gas plant in Portland. The writ alleges negligence in regard to employment of servants, defective condition of piping and appliances of the works, and that by reason of such negligence an explosion occurred, resulting in the death of the plaintiff's intestate, an employé of the defendant at its works.

The case comes before the law court on motion and exceptions by defendant. The first exception relates to the refusal of the presiding justice to rule in what capacity one Richard H. Walsh was competent to testify as an expert When a witness is offered as an expert, it is the duty of the presiding justice to hear and consider the testimony as to his qualifications, and to decide whether the witness is qualified to so testify. He is not, however, bound to determine the fact in advance of the question to the witness which calls for expert testimony. The question itself will then show in what capacity as an expert he is asked to testify, and the ruling of the presiding justice admitting it is ipso facto a decision that the witness has qualified upon that subject, and also that the subject is one proper for expert testimony.

"There are no fixed classes of expert persons, in one of which a witness finds himself, and remains permanently. A person may be sufficiently skilled for one question, and totally unqualified for the next. * * * The witness may, from question to question, enter or leave the class of persons fitted to answer. It is desirable to appreciate that expert capacity is a matter wholly relative to the subject of the particular question; that therefore the existence of the capacity arises in theory as a new inquiry from question to question; and that a particular person is not to be thought of as objectively or absolutely an expert, in the sense that he is absolutely a German or a negro or six feet high." 1 Greenleaf, Ev. (10th Ed.) 430a.

The remaining exceptions are to the...