Dunagan v. Appalachian Power Co.

• Citation: 33 F.2d 876,68 ALR 1393
• Decision Date: 01 July 1929
• Docket Number: No. 2807.,2807.
• Parties: DUNAGAN v. APPALACHIAN POWER CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

68 ALR 1393, 33 F.2d 876 (1929)

DUNAGAN v. APPALACHIAN POWER CO.

No. 2807.

Circuit Court of Appeals, Fourth Circuit.

July 1, 1929.

William H. Werth, of Tazewell, Va., for appellant.

Robert E. Scott, of Richmond, Va., and George Richardson, Jr., of Bluefield, W. Va., for appellee.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

This is the third appeal by the plaintiff, Ellen Mary Dunagan, administratrix of Emery Dunagan, deceased, from a verdict and judgment in favor of the Appalachian Power Company. On the first appeal we awarded a new trial because the judge below directed a verdict for defendant, whereas we thought that as the record then stood there was sufficient evidence of negligence to take the case to the jury, and that the evidence of contributory negligence was not so conclusive as to warrant the direction of a verdict. Dunagan v. Appalachian Power Co. (C. C. A.) 11 F. (2d) 65. On the second appeal we awarded a new trial because of error in two instructions, one of which wrongly placed the burden of proof on plaintiff to show decedent not guilty of contributory negligence, and the other made decedent's right to throw an electric switch to protect the property of his employer depend upon whether in doing so he was acting within the scope of his duties. Dunagan v. Appalachian Power Co. (C. C. A.) 23 F.(2d) 395. The third trial was had in strict accord with the law as laid down in our former opinions, and resulted in another verdict for defendant, from the judgment on which plaintiff has appealed and now asks that the case be sent back for a fourth trial.

The action was instituted to recover damages for the death of one Emery Dunagan, who was killed by coming in contact with the electric current escaping from one of defendant's power lines. There was much doubt as to the manner, as well as the cause, of Dunagan's death; but, in the absence of explanation, we thought that the facts shown by the plaintiff were sufficient to take the case to the jury. They are set forth fully in the former opinions, and need not be repeated here. On this appeal, plaintiff places reliance principally upon three points, viz.: (1) That there was error in admitting certain expert testimony bearing upon whether proper precautions were taken by the employees of defendant at one of its substations to discover and correct the dangerous conditions on its line; (2) that there was error in admitting the testimony of these experts as to what was customary in the inspection of power lines; and (3) that there was error in giving defendant's ninth prayer for instructions, which is criticized as making due care in inspection depend upon the custom of other companies.

The first point relates to the testimony of experts as to what is indicated by the throwing of an electric circuit breaker, and what is the proper course for the employee in charge to pursue when it is thrown. The witnesses testified at length with regard to this; and, basing their opinions on the testimony of witnesses which they had heard, they testified also that the throwing of the circuit breaker at the substation of defendant was not significant, and that what the employees did in connection therewith was proper. Plaintiff argues that the admission of this testimony was error, because the witnesses were allowed to base their opinions upon testimony which they had heard instead of upon a hypothesis presented in a proper hypothetical question, to give opinions upon ultimate facts which were questions for the jury, and to base their opinions upon the testimony of certain witnesses instead of upon all of the evidence in the case.

We agree with counsel for plaintiff that the questions were not in proper form, but we do not think that plaintiff was in any way prejudiced thereby. It is well settled that, in the examination of experts as to matters which they have not themselves observed, testimony as to their opinions should be predicated upon hypothetical statements propounded in proper questions, not upon the testimony of other witnesses whom they have heard testify. Dexter v. Hall, 15 Wall. 9, 21 L. Ed. 73; Manufacturers' Accident Indemnity Co. v. Dorgan (C. C. A. 6th) 58 F. 945, 22 L. R. A. 620; 11 R. C. L. 581. And, of course, whether due care was used by the employees in the particular case was a question for the jury and not for expert witnesses. 11 R. C. L. 617. It appears, however, that the witnesses did not merely give their opinions and stop there. They testified in great detail as to the nature of the circuit breaker, what its "flying out" indicated, and what should be done upon such an occasion, and why. In other words, they gave all of the facts upon which their opinions were based so completely that the jury could judge of their weight as well as if they had been based upon hypotheses embraced in proper questions. Under these circumstances, there can be no question that the error was harmless. Castner Electrolytic Alkali Co. v. Davies (C. C. A. 2d) 154 F. 938, 942; Neeley v. Town of Cameron, 71 W. Va. 144, 75 S. E. 113.

And it was no ground of objection to the expert testimony that it was based solely upon the facts as testified by certain witnesses for defendant, ignoring the other testimony in the case. In the first place, these witnesses were the only ones who testified as to the behavior of the circuit breaker. In the second place, it is no objection to the testimony of an expert that it is based upon facts as contended by one of the parties; for the other party by cross-examination may show that other facts deemed pertinent have not been considered or that a consideration of such other facts would alter his opinion. 11 R. C. L. 580; Denver & R. G. R. Co. v. Roller (C. C. A. 9th) 100 F. 738, 754, 49 L. R. A. 77; Swensen v. Bender (C. C. A. 9th) 114 F. 1, 6; Woodward v. Chicago, M. & St. P. Ry. Co. (C. C. A. 8th) 122 F. 66; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 500, 2 L. R. A. 668; note, 18 Ann. Cas. 646.

The second point relates to the testimony of the experts regarding the inspection of the power lines of defendant. So far as this objection goes to the fact that their opinion was based upon the testimony of witnesses instead of a hypothetical state of facts, it is answered by what we have said with regard to the same matter in discussing the first point. Objection was also made to certain testimony of these witnesses as to the custom of other companies in making inspection; but this testimony was clearly competent. It is true that the question of the exercise of due care is not to be determined solely with reference to the custom of other companies, but evidence as to such custom is certainly competent for consideration by the jury upon that question. Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 23 S. Ct. 622, 47 L. Ed. 905; Southern Ry. Co. v. Miller (C. C. A. 4th) 267 F. 376, 380; Owl Creek Coal Co. v. Goleb (C. C. A. 8th) 210 F. 209; Chicago Great Western Railway Co. v. Minneapolis, etc., R. Co. (C. C. A. 8th) 176 F. 237, 20 Ann. Cas. 1200; note, 20 Ann. Cas. 1205.

The third point is addressed to the giving by the court of defendant's ninth prayer for instructions, as follows:

"If the jury believes from the evidence that the lines of the power company were properly constructed, of the proper materials, were properly inspected in accordance with the practice in such cases usually followed by those engaged in the business of the maintenance and operation of high tension electric lines such as appears in the evidence in this case; that the power house from which electric current passed onto the said line was equipped with the usual modern appliances in known practical use; that within a reasonable time after such appliances indicated trouble on the line reasonably prudent steps were taken to ascertain where the trouble was, and to correct the same, then the defendant company was not guilty of negligence and there can be no recovery."

The contention of counsel for plaintiff is that this instruction makes the custom of other companies the test of due care in inspection of defendant's lines. We do not think, however, that the jury could have received this idea from the charge when it is considered as a...