Dowling v. L. H. Shattuck, Inc.

• Decision Date: 07 January 1941
• Docket Number: No. 3196.,3196.
• Citation: Dowling v. L. H. Shattuck, Inc., 17 A.2d 529, 91 N.H. 234 (N.H. 1941)
• Parties: DOWLING v. L. H. SHATTUCK, Inc.
• Court: New Hampshire Supreme Court

17 A.2d 529

DOWLING

v. L. H. SHATTUCK, Inc.

No. 3196.

Supreme Court of New Hampshire. Hillsborough.

Jan. 7, 1941.

[Copyrighted material omitted.]

[Copyrighted material omitted.]

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Action by Lloyd Dowling against L. H. Shattuck, Incorporated, to recover for injuries sustained when plaintiff was partially buried, when the shoring of a ditch under construction by defendant collapsed and permitted a cave-in, wherein defendant's exceptions were transferred to the Supreme Court.

Judgment on the verdict.

Case, for negligence by an employee against his employer. A trial by jury, after a view, resulted in a verdict for the plaintiff in the sum of $7,000.

The plaintiff, a common laborer, was partially buried and his right leg was broken at the knee when the shoring of a ditch under construction by the defendant in Hampton collapsed and permitted a cave-in. At the time of his injury the plaintiff was working in the ditch shoveling sand. He had nothing whatever to do with either the design or construction of the shoring. The court, Lorimer, J., transferred the defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict, to the admission of evidence, to rulings of the court permitting portions of the plaintiff's argument to the jury to stand, to the failure of the court to charge as requested, and to the denial by the court of its motion to set the verdict aside as excessive.

The material facts are stated in the opinion.

Chretien & Craig, of Manchester (Alfred J. Craig, of Manchester, orally), for plaintiff.

Sheehan & Phinney, of Manchester (Wm. L. Phinney, of Manchester, orally), for defendant.

WOODBURY, Justice.

The defendant does not contend that its motions for a nonsuit and for a directed verdict should have been granted because of conclusive evidence of either the plaintiff's contributory negligence or of his assumption of the risk. Its sole contention is that the record contains no competent evidence that it was in any way negligent. The validity of this contention depends upon the admissibility of the testimony of two witnesses called by the plaintiff who were permitted by the court, over the defendant's objection and subject to its exception, to testify as experts. The substance of their testimony was that the shoring was improperly designed and that the material provided by the defendant for its construction was both insufficient in amount and inadequate in strength.

The admissibility of opinion evidence, under the liberal rule in force in this state, does not depend upon the nature of the issue upon which that evidence bears (Davis v. Railroad, 75 N.H. 467, 76 A. 170; Higgins v. Carroll, 86 N.H. 312, 167 A. 270; Goldstein v. Corporation, 86 N.H. 402, 169 A. 587), but upon whether or not, in the sound discretion of the presiding justice, evidence of that nature will probably aid the jury in their search for the truth. Carbone v. Railroad, 89 N.H. 12, 20, 192 A. 858 and cases cited. The question of whether a witness offered as an expert may testify as such is also one addressed to the sound discretion of the court below. It is whether or not the witness, by either study or experience (Ricard v. Insurance Co., 87 N.H. 31, 173 A. 375, 93 A.L.R. 784), has knowledge on the subject matter of his testimony so superior to that of men in general concerning it that his views will probably assist the triers of fact. Emery v. Company, 89 N.H. 165, 169, 195 A. 409; Ford v. Ford's Estate, 89 N.H. 292, 297, 197 A. 824, and cases cited; Weiss v. Wasserman, N.H., 15 A.2d 861.

Counsel for the defendant admit that the proper method of shoring a ditch is a fit subject for the testimony of experts, but contend that the witnesses offered by the plaintiff as experts and permitted by the court to testify as such were not qualified.

With respect to the first of these witnesses they point out that he was a fellow laborer with the plaintiff in the ditch, that he had never had any engineering education (in fact, he was illiterate), that he had worked only once before under conditions similar to those encountered in the ditch where the cave-in occurred, and that his experience in working upon shoring before the present job, where he was in direct charge of that operation, had only been as one of several helpers under the supervision of a foreman. These considerations affect the weight to be given to the testimony of this witness but they do not go to the fundamental question which is whether his knowledge of shoring was sufficiently superior to the knowledge on the subject of persons in general to make his views of value to the jury. His testimony that he had had five years experience in working upon shoring in various places, sometimes under conditions substantially similar to those encountered at Hampton, provides an amply sufficient basis for the court's ruling that he was qualified to speak as one having expert knowledge.

The defendant admits that the plaintiff's second witness was qualified to speak as an expert on shoring ditches, but contends that his testimony should have been stricken from the record, first, because he had never constructed shoring in ditches dug in beach sand, as was the one in which the plaintiff was injured, second, because he based his opinion that the defendant's method of shoring was defective only upon a comparison between it and the safest possible method, and, third, because the shoring method said by him to be proper he later admitted to be the method standard, as far as he knew, only in the city of Manchester.

The defendant's first ground for objection to the testimony of this witness is met by his testimony that he had more than once supervised the shoring of ditches dug in "running sand" similar to beach sand even though he had never actually worked at a beach. The second ground for objection is met by the testimony of this witness that the method said by him to be the safest was also "the proper and only way to do it." The third ground is also without merit. The question is not what method of construction conforms to general standards of safety but what method is reasonably safe. Frear v. Company, 83 N. H. 64, 139 A. 86, 61 A.L.R. 1280. If the method said by the witness to be the "safest, the proper and only way to do it," is shown to be standard in but one locality the force of the witness' testimony may be affected, but his competency as an expert is not. The defendant's further argument that the testimony of this witness may have induced the jury to apply a higher standard of care to the defendant's acts than that imposed by the law comes to nothing because the court instructed the jury in his charge as to the proper legal standard to be applied by them.

From this it follows that there is in the record competent evidence that the defendant failed in his nondelegable duty to provide the plaintiff with a reasonably safe place in which to work. Maltais v. Concord, 86 N.H. 211, 166 A. 267. In consequence the defendant's motions for a nonsuit and for a directed verdict were properly denied.

The defendant objected and excepted to the use by one of the plaintiff's expert witnesses of photographs taken of the ditch after the cave-in, which were exhibits in the case, as a basis for certain conclusions which he drew as to the inadequacy of the shoring. Obviously the photographs showed the size of the timbers used and the number of them, and the fact that an outside brace said by him to be essential for reasonable safety was not used. The record discloses that these are the only uses made of the photographs by the expert. We are unable to see any error in his so using them.

The shoring of the ditch consisted of two rows of planks driven down vertically along each side of the ditch. They were held apart by a system of transverse braces. The cave-in occurred when a large stone in the middle of the ditch was removed thereby permitting another large stone, beside and resting against it and also under the vertical planks, to fall inward into the ditch. The movement of this second stone permitted sand to flow in behind it through the aperture which it left below the shoring thus weakening an entire section of it so that it fell over. It appeared that the upright planks all along the ditch had been driven into place to the point of refusal with a fourteen pound sledge hammer and that those which were over the stone which rolled into the ditch had been driven as far as possible onto it.

The plaintiff introduced evidence that an instrument known as a maul, which weighed seventy-five to ninety pounds, and was operated by a crew of three men, was ordinarily used to drive shoring planks and that it would drive them deeper than a sledge. To this evidence the defendant objected on the ground that a finding of its liability could not be predicated upon a finding that a maul instead of a sledge hammer should have been used. Its objection was overruled and it excepted.

This exception is without merit. There was evidence that some of the upright planks in the section of shoring which collapsed had not been driven to the bottom of the excavation and that this condition rendered that part of it unsafe. The reason given for this was that if shoring planks are not driven to full depth and if, upon disturbance at one point, sand should start to flow into the ditch, its flow would spread laterally along the bottom of the ditch below the shoring thereby undermining a large section of it, whereas if all shoring planks are driven home, disturbance at one point, such as was occasioned by the removal of the stone, would have permitted only a little sand to flow into the ditch thereby localizing the cave-in to but one small place.

From the foregoing the jury could have found that although the planks were driven, as they should have been, directly onto the stone, and that a maul would have been no more...