Greer's Adm'R v. Harrell's Adm'R

• Decision Date: 16 December 1947
• Parties: Greer's Adm'r v. Harrell's Adm'r et al.
• Court: United States State Supreme Court — District of Kentucky

306 Ky. 209

Greer's Adm'r v. Harrell's Adm'r et al.

Court of Appeals of Kentucky.

December 16, 1947.

1. Evidence. — Where question involved is such that jurors are incompetent to draw their own conclusions from evidence without aid of expert testimony, opinions of persons having a technical or peculiar knowledge on the subject are admissible.

2. Evidence. — Expert evidence must usually be of such character as not to fall within the range of common experience and observation and therefore not to be intelligible to jurors without the aid of opinion to be admissible.

3. Evidence. — Test of admissibility of expert evidence is not whether subject matter is common or uncommon nor whether witness can claim superior judgment or powers of reasoning, or better comprehend or appreciate the matter at issue, but whether the question upon which the evidence is offered is one of science or skill.

4. Master and Servant. — In action for death of deceased by carbon monoxide while operating defective boat of employer where evidence neither established that employer owned the boat nor employed deceased to work for him nor that deceased was operating the boat under his direction nor that it was defective and unsafe at the time of death nor that employer knew or should have known of the condition that caused death, a peremptory instruction for employer was proper.

Appeal from Marshall Circuit Court.

Lovett & Lovett and H.B. Holland for appellant.

Prince & Acree, Holland G. Bryan and Roy N. Vance, Jr. for appellees.

Before Joe L. Price, Judge.

OPINION OF THE COURT BY JUDGE KNIGHT.

Affirming.

In the year 1943, and the early part of 1944, the Tennessee Valley Authority was engaged in the raising of Eggner's Ferry bridge across the Tennessee River, now Kentucky Lake, and it was necessary to provide a ferry for traffic crossing the lake during the months of construction work on the bridge. Three bids for furnishing and operating the ferry were filed with the state, one in the name of Lee Cox, one in the name of Ethridge Harrell, and one in the name of Juanita Greer Lamb. The contract was awarded to the latter. The ferry used consisted of a flat boat, or barge, which was pushed and propelled by a small cabin boat powered with two automobile engines.

The bridge was completed and opened and the ferry contract expired at six p.m. on February 26, 1944. Some several months before that date Ethridge Harrell and Grace Williams went to the home of Cletus Greer and employed him to work on the boats, with apparently no particular ferry boat being mentioned.

On the late afternoon of February 26, 1944, Ethridge Harrell, Cletus Greer and Jess Cooper went up to the Eggner's Ferry bridge in Cooper's car to bring the ferry boat, consisting of the barge and cabin boat, down the lake to Gilbertsville. While the proof shows nothing of what occurred, Cooper, the only survivor, not having testified, it is said in the brief of appellees, without any contradiction thereto, that the car was placed on the barge and the three people above mentioned left the abandoned ferry site on the boat. Cooper got into his car and the other two boys were in the cabin. Cooper went to sleep. He awoke about dawn the next morning and discovered that the boat and barge were grounded on an island, and upon investigation discovered Harrell and Greer dead in the cabin of the boat. The appellant, as administrator of the estate of Cletus Greer, brought this suit against appellee as administrator of the estate of Ethridge Harrell, charging that Cletus Greer met his death by asphyxiation while in the cabin of that boat, and alleging that the death of said Greer was caused by the negligence of Ethridge Harrell, his agents and employees, and that the boat upon which said Greer met his death was in a defective and unsafe condition, which condition was known by Ethridge Harrell, or could have been known by him by the exercise of ordinary care. He prayed for damages in the sum of $20,000 to the estate of decedent.

Defendant denied the allegations of the petition and pleaded contributory negligence on the part of Cletus Greer.

By an amended and supplemental petition Juanita Greer Lamb was made a party defendant, but her demurrer to the amended and supplemental petition was sustained and she is not a party to this appeal.

Upon the trial of the case on October 28, 1946, the Judge of the Marshall Circuit Court peremptorily instructed the jury to find for the defendant John Harrell, administrator, which was done. Motion for a new trial having been overruled the plaintiff has appealed to this court for a reversal of that decision.

What Proof Shows.

Louie Greer, father of Cletus, testified that his son was 18 years of age at the time of his death; that Ethridge Harrell and Grace Williams came to his house in October 1943, and asked Cletus to go to work on the ferry boat and, as he thought, on a monthly basis. It was not shown by the evidence for whom he was to work or who owned the ferry boat on which he met his death.

Horace Stringer, who had operated a ferry boat at Gilbertsville for about 19 years, testified that he had seen the boat on which Greer died about two days after his death and that it had no...