Hopkins v. Comer
| Citation | 81 S.E.2d 368,240 N.C. 143 |
| Decision Date | 28 April 1954 |
| Docket Number | No. 94,94 |
| Parties | HOPKINS, v. COMER (three cases). |
| Court | United States State Supreme Court of North Carolina |
Cooley & May and Arthur C. Bernard, Nashville, for plaintiff, appellant.
Battle, Winslow & Merrell, Rocky Mount, for defendant, appellee.
The plaintiff assigns as error, based on his exceptions Nos. 37 and 38, the trial court's sustaining the defendant's objections to two questions asked Dr. John Chamblee. Dr. Chamblee is health officer of Nash County; a doctor of medicine, licensed to practice his profession, who had studied chemistry two years at college. Dr. Chamblee was offered by the plaintiff as a layman, who had studied chemistry, and not as an expert; and as a man who was familiar with the type of cargo tank truck such as exploded in the instant case. Dr. Chamblee was asked this hypothetical question in substance: assuming that the jury should find that the tank truck was unloaded of its gasoline around noon on Saturday, the tank drained, all the known openings closed and fastened; that it was taken to Rocky Mount, was washed and greased, and thereafter driven to the Hopkins' yard where it remained about 30 hours; that it was not exposed to any outside fire producing agency, and around 5:15 p.m. on the next day violently exploded, did he have an opinion satisfactory to himself as to what caused the explosion? The court sustained defendant's objection to the question, which is the basis of plaintiff's exception No. 37. Dr. Chamblee, if permitted to answer, would have replied: in his opinion the explosion would be caused from spontaneous combustion on the inside of the tank. Dr. Chamblee was then asked, considering his familiarity with this type tank, if he had an opinion as to what would cause an explosion of an empty tank recently emptied of gasoline, eliminating any external causes. If permitted to answer, over defendant's objection, he would have given the same answer he did to the hypothetical question. This is plaintiff's exception No. 38.
In both of these questions Dr. Chamblee was asked to give his opinion upon facts not within his personal knowledge--in other words to give expert testimony. These questions present this question: was Dr. Chamblee better qualified than the jury to form an opinion from these facts? This Court has said in Patrick v. Treadwell, 222 N.C. 1, 21 S.E.2d 818, 821: "it would seem that the proper test is whether additional light can be thrown on the question under investigation by a person of superior learning, knowledge or skill in the particular subject, one whose opinion as to the inferences to be drawn from the facts observed or assumed is deemed of assistance to the jury under the circumstances." (Italics ours.)
A witness to be competent as an expert must be shown to be skilled or experienced in the business, profession or science to which the subject relates, though there is no exact requirement as to the mode by which such knowledge, skill or experience has been acquired. State v. Smith, 221 N.C. 278, 20 S.E.2d 313; 20 Am.Jur., Evidence, § 784; Stansbury N.C.Evidence, § 133; Wigmore on Evidence, Third Ed., § 1923.
Dr. Chamblee by education, training and experience is well qualified as a physician to give an opinion which would be likely to aid a jury to a correct conclusion as to the diseases and ills constantly threatening and affecting humanity. However, it does not appear that Dr. Chamblee is qualified by education, training or experience to express an opinion as an expert witness as to the cause of the explosion in this case. The rulings of the trial court as to this assignment of error were correct.
The plaintiff assigns as error the refusal of the trial court, over defendant's objection, to hold that Herman Baker had qualified as an expert witness for plaintiff, and the refusal of the trial court to permit him, over defendant's objection, to say where he kept his cargo tank trucks, how he loaded and unloaded them, and to express an opinion upon assumed facts. This assignment of error is based on his exceptions Nos. 39-43, both inclusive. Herman Baker has been an oil distributor 32 years, and is familiar with the equipment he uses. The record is bare of any evidence that Herman Baker by his business, knowledge, trade or experience is qualified to give an opinion as an expert witness as to the explosion in this case. The plaintiff contends Herman Baker's evidence was excluded under an erroneous view of the law, citing Pridgen v. Gibson, 194 N.C. 289, 139 S.E. 443, 54 A.L.R. 855. It is a far cry from the facts in that case and in this. In the Pridgen Case it was held error for the trial court to hold as a matter of law that a general practitioner of medicine could not qualify as an expert to give his opinion in a personal injury case for alleged malpractice, though he had not specialized as an oculist. This exceptive assignment of error is overruled.
This brings us to a consideration of plaintiff's assignment of error as to the trial court allowing defendant's motions for judgments of nonsuit in all three cases, made at the close of all the evidence. We do not consider the defendant's evidence on such a motion, unless favorable to the plaintiff, except when not in conflict with plaintiff's evidence, it may be used to explain, or make clear the evidence of the plaintiff. Harrison v. North Carolina R.R. Co., 194 N.C. 656, 140 S.E. 598; Rice v. Lumberton, 235 N.C. 227, 69 S.E.2d 543; Polansky v. Millers Mut. Fire Ins. Ass'n, 238 N.C. 427, 78 S.E.2d 213.
"Everybody knows that a lighted match will ignite kerosene or fuel oil." Jennings v. Standard Oil Co., 206 N.C. 261, 173 S.E. 582, 583. It is common knowledge that gasoline is highly inflammable. American Oil Co. v. Nicholas, 156 Va. 1, 157 S.E. 754. "It is a matter of general knowledge, that gasoline is highly volatile and gives off fumes and vapors which readily ignite when in the proximity of a flame." Bradley v. Fowler, 210 S.C. 231, 42 S.E.2d 234, 237. Webster's New Collegiate Dictionary (1949) gives as one definition of the word cap: "a percussion cap; also a small piece of paper containing an explosive charge, used in toy pistols." It is common knowledge that the firing of a cap pistol, or the explosion of a cap by such pistol, emits a spark, and that a spark will ignite gasoline or gasoline fumes or vapors.
Judicial notice is not limited by the actual knowledge of...
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State ex rel. Utilities Commission v. General Tel. Co. of Southeast
...and experience is not necessarily qualified to testify as an expert in other fields, even though somewhat related. Hopkins v. Comer, 240 N.C. 143, 81 S.E.2d 368. However, the competency of a witness to testify as an expert is a question addressed primarily to the sound discretion of the tri......
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