Fowlie v. McDonald, Cutler & Co.

• Decision Date: 14 February 1912
• Citation: 85 Vt. 438,82 A. 677
• Court: Vermont Supreme Court
• Parties: FOWLIE v. McDONALD, CUTLER & CO.

82 A. 677

85 Vt. 438

FOWLIE

v. McDONALD, CUTLER & CO.

Supreme Court of Vermont. Washington.

Feb. 14, 1912.

Haselton, J., dissenting.

Exceptions from Washington County Court; E. L. Waterman, Judge.

Action by Jane B. Fowlie, as administratrix of James Fowlie, deceased, against McDonald, Cutler & Company. Judgment for plaintiff on a verdict, and defendant brings exceptions. Reversed and remanded.

This case has been once before in the Supreme Court (82 Vt. 230, 72 Atl. 989), and the opinion there should be read for a statement of the case. Plaintiff claimed that defendants have no available exception to the admission of the testimony referred to in the opinion, in view of what occurred when that testimony was received, which was as follows: Plaintiff called one McGrannahan as a witness and, on direct examination, asked him: "Now, you may describe what you saw about Mr. Fowlie as to the way in which he did his work?" To this question, or any answer thereto, counsel for defendants objected, as improper under the opinion above referred to. Thereupon some discussion was had, wherein plaintiff's counsel stated: "I am not asking for his opinion. I am only asking him to describe what he saw." And then the court ruled that the witness might describe the maimer in which Fowlie did the work, saying, "I understand your inquiry is limited to this particular work, and to this very car." Thereupon defendant's counsel said: "I object to it as not proper evidence; the witness is incompetent to testify on that matter." At this point the transcript reads: "Exception by defendants. The Court: Proceed." And then the witness answered, "Well, when we chained a stone, he would go round just the wrong way about it—" whereupon defendant's counsel interrupted with: "Wait! That is opinion—didn't go at it right." Here followed a discussion in which plaintiff's counsel insisted that the witness was stating a fact, and not giving his opinion. And then the court said, "Under the decision of the Supreme Court, you will have to confine him pretty closely to just what he saw, and just how it was done, nothing more than that," and declined to find that the witness was qualified as an expert. Thereupon plaintiff's counsel said, "As far as 'the wrong side' is concerned, that may be stricken out"; but it was not. Referring to the above, the bill of exceptions states, "As to whether there is any exception to this question and answer, reference may be had to the transcript of Mr. McGrannahan's testimony." Immediately after the foregoing, the transcript shows the following in further direct examination of this witness: "Q. Now, you may go on with your description of the things you saw him do there. Well, go ahead, Mr. McGrannahan, and state everything else that you observed. Defendants' Counsel: I think he should caution the witness, if the court please, not to express an opinion or a conclusion. Plaintiff's Counsel: The witness has been cautioned on the matter as far as we can, in view of the decision that was made. Witness: Well, in barring stone on the dump, sometimes he put his bar in where it was not required. Defendants' Counsel: To that I object. I say that it is not responsive. Plaintiff's Counsel: Well, 1 think it is proper, and responsive to the question. Defendants' Counsel: That I object to. That is the trouble we had during the last trial. The Court: Well— Q. Well, go on with anything else you saw when working around the car. Defendants' Counsel: I have my exception to that question? The Court: Yes, an exception may be noted, if you wish it to stand. (Exception by defendants.)" Thereupon the court cautioned the witness to confine his answer to the above question to stating just what Fowlie did. Then the witness attempted to answer, was interrupted by an objection by defendant, which started a discussion between counsel, called forth a further like caution by the court to the witness, and finally the witness was asked another question. The bill of exceptions concludes with: "The reporter's transcript of the testimony, and charge, and exceptions, properly certified by the reporter, are to govern in case of discrepancy between the stated case and the evidence in the case."

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

John W. Gordon and S. Hollister Jackson, for plaintiff.

Richard A. Hoar and H. R. Bygrave, for defendant.

MUNSON, J. The plaintiff's intestate was killed while engaged with one McGrannahan in operating a dump car on the defendant's quarry. One matter in issue was whether the deceased was so wanting in experience and skill that he was entitled to instructions. It appears that the work of these men included the handling of blocks of granite of irregular shape weighing several tons.

The plaintiff called McGrannahan, and inquired of him under exception, "You may describe what you saw about Fowlie as to the way in which he did his work," and the witness replied, "Well, when we chained a stone, he would go round just the wrong way about it." Plaintiff inquired further: "You may go on with your description of the things you saw him do there. State anything else you observed." The witness replied, "Well, in barring stone upon the dump, he sometimes put his bar in where it was not required." This answer was allowed to stand against defendants' objection that it was not responsive. Nothing further was obtained from the witness regarding Fowlie's method of chaining or his use of a bar. The court declined to find that the witness was qualified as an expert. On a former trial (82 Vt. 230, 72 Atl. 989) this witness was asked, "You may tell in detail in what way he did his work," and answered that he did his work like a man who had never worked about a quarry; and this was held error. The questions asked here were substantially the same as that one; and the evidence was of the same character, in that it left the matter to stand solely on the opinion of the witness without presenting any facts from which the jury could form its own opinion. But in one respect the evidence is somewhat different. The...