Hayes v. Southern Pac. Co.

• Decision Date: 20 June 1898
• Docket Number: 931
• Citation: 17 Utah 99,53 P. 1001
• Court: Utah Supreme Court
• Parties: WILLIAM HAYES, APPELLANT, v. SOUTHERN PACIFIC CO., RESPONDENT

53 P. 1001

17 Utah 99

WILLIAM HAYES, APPELLANT, v. SOUTHERN PACIFIC CO., RESPONDENT

No. 931

Supreme Court of Utah

June 20, 1898

Appeal from district court, Weber county; H. H. Rolapp, Judge.

Action by William Hayes against the Southern Pacific Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

J. H. &amp H. R. Macmillan, for appellant:

Introduction of the evidence of the experiment was inadmissible. Cam v. Piper, 120 Mass. 188; Eidt v. Cutter, 127 Mass. 523; State v. Justus (Or.) 8 P. 337; Ry v. Mugg, 31 N.E. 565-6; Ry. v. Champion, 32 N.E. 875; Libby v. Scherman, 34 N.E. 803; Moore v. Ry., 61 N.W. 992.

Of course the jury in this case was not taken to Carlin to see the experiment performed, but we say that an experiment performed before the court, jury, and respective parties is more apt to bring about a fair result than one performed by one of the parties with no one else present. and then testified to before the jury by those performing it.

See also as bearing upon this question the following: U. S. v. Ried, 42 F. 134; Kinney v. Folkers, 84 Mich. 620; Clark v. Willett, 35 Cal. 535; C. P. R. R. v. Pearson, 35 Cal. 247; Medsker v. Pague, 27 N.E. 432; D. & R. G. v. Glasscott, 4 Colo. 270; Klanowski v. G. T. Ry. Co. (Mich.) 31 N.W. 275; Alabama, etc., Ry. Co. v. Burgess, 22 So. 169-171.

Marshall, Royle & Hempstead, for respondent.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

The plaintiff was on the 18th day of November, 1894, in the employ of the defendant company at Carlin, Nev., as a coal heaver. His work had to be performed in the company's coal sheds, and consisted in supplying the tenders of engines with coal whenever they were run into the sheds for that purpose. The coal sheds were constructed with a railroad track through them, so as to enable the running of engines into them for coaling purposes. It appears that coal bins were on both sides of the track, and that the passageway or space for the track, according to plaintiff's testimony, was 12 feet 2 inches wide. On the day above mentioned the plaintiff attempted to pass through this passageway, on the track to the roundhouse, for a purpose of his own, and was struck by the beam of an engine in the sheds while standing on the side of the track, against a coal bin, where he had gone, on the approach of the engine, as a place of safety, and received the injuries of which he complains. The witness Fitzgerald testified that the beam on the engine which struck the plaintiff, by measurement, was 9 feet and 1 inch in length. There is also evidence tending to show that it was a practice for employees, with the knowledge of the company, to pass through the sheds on the track. The plaintiff, claiming that he was injured through the negligence of the defendant in the construction of its coal sheds, brought this action to recover damages. At the trial the jury returned a verdict of "no cause of action." Hence this appeal.

The first assignment of error which we will consider relates to the admission of evidence. The court permitted the witness Fitzgerald, over the objection of counsel for the plaintiff to answer the following question: "From your experience as a railroad engineer and your experience as a civil engineer, please state whether those sheds were carefully and properly built for the purposes for which they were erected?" Counsel for the appellant insist that this action of the court was erroneous, because, as they maintain, it was calling for the opinion of the witness on a question that the jury was to determine. No objection appears to have been interposed on the ground that the witness was not an expert, and therefore it may be assumed that he was competent to give expert testimony. The general rule is that a witness must testify to facts, and not conclusions. To this rule, however, there are exceptions, and we think this question falls within the exceptions. The contention of the appellant at the trial was that the coal sheds were negligently constructed. This was controverted by the respondent, and thus one of the main issues was whether they were properly erected for the purpose for which they were intended. Now, it is apparent from the evidence that sheds are peculiar and more or less complicated structures,--results of mechanical skill,--and appear to be necessary for, and used exclusively in, the business of railroading. Thus, the very nature and use of the structure precludes the idea that the average layman is competent to judge of their proper or improper construction. It was therefore permissible to resort to the opinion of a person possessed of such requisite mechanical skill and experience as enabled him to form a correct judgment as to whether or not the sheds were carefully and properly constructed. The building of such sheds for the purpose of railroading is not a subject of general knowledge, but it depends so far upon skill in and knowledge of the mechanic arts, outside the knowledge and experience of ordinary jurors, as to render the opinions of those who are competent, from special training in the art of construction, and experience, to form them, admissible. This is so because of the difficulty in placing before jurors unskilled in such matters a state of facts which would enable them to draw correct conclusions without the aid of such opinions. And such opinions are not in all cases confined to experts. "There is a growing tendency to the doctrine, if it be not already established, that opinions of ordinary witnesses may be given upon matters of which they have personal knowledge in all cases in which, from the very nature of the subject, the facts, disconnected from such opinions,...