Johnson v. Caughren

• Decision Date: 04 October 1909
• Citation: 104 P. 170,55 Wash. 125
• Parties: JOHNSON v. CAUGHREN et al.
• Court: Washington Supreme Court

104 P. 170

55 Wash. 125

JOHNSON v. CAUGHREN et al.

Supreme Court of Washington

October 4, 1909

Department 1. Appeal from Superior Court, Klickitat County; W. W McCredie, Judge.

Action by John Johnson against James A. Caughren and another copartners. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

A. L. Miller, W. B. Presby, and N. B. Brooks, for appellants.

Henry E. McGinn, for respondent.

FULLERTON J.

The respondent brought this action to recover for personal injuries received while in the employ of the appellants, who were contractors doing construction work for the Portland &amp Seattle Railway Company on the north bank of the Columbia river. At the time of the injury the respondent was acting as assistant to one Ferguson, another employé of the appellants known as the powder man; the duties of the powder man being among others, to superintend the drilling of holes for blasting, and to charge and explode the blasts. The immediate cause of the respondent's injury was the premature explosion of a blast. While assisting Ferguson in charging a drill hole for the purpose of springing it, the charge exploded prematurely, putting out both of his eyes. In his complaint he alleged that the explosion was due to the unfitness and incompetency of Ferguson to perform the work for which he was employed. The appellants put in issue by answer the allegations of the complaint, and alleged affirmatively that the respondent assumed the risks incident to his employment of which the premature explosion of a blast was one, and was himself guilty of contributory negligence; and, further, that the negligence, if any, causing his injury, was the negligence of a fellow servant. On the issues thus formed a trial was had resulting in a verdict and judgment in favor of the respondent for the sum of $10,000.

In support of their appeal the appellants have made a number of assignments of error, the greater number of which we think deserve no especial consideration. The evidence made a case for the jury, and consequently the court did not err in denying the appellants' motion for a nonsuit made at the conclusion of the respondent's case in chief, or its motion for an instructed verdict made at the conclusion of the entire case. Nor was there error in giving or refusing to give instructions. The principal objections to the instructions given are that they are not based on issues made by the complaint and answers, but it is a sufficient answer to these objections to say that the instructions were based on evidence admitted without objection as if upon sufficient pleadings. In such cases the court will treat the pleadings as the parties themselves have treated them, as sufficiently broad to warrant the introduction of the evidence. The substance of the instructions requested was included in the instructions given. In this state this is a sufficient compliance with a request to instruct.

The court, however, permitted certain witnesses to give their opinions as to the competency and fitness of Ferguson to perform the duties as a powder man; the witnesses answering that in their judgment he was incompetent and unfit to perform such duties. This we think was error. The general rule is that a witness must testify to facts, not opinions; that whenever the question to be determined is to be inferred from particular facts which can be readily produced before the jury, and the inference to be drawn therefrom is within the common experience of men in general, requiring no special knowledge, skill, or training, the inference or conclusion is to be drawn by the jury and not the witness. In the case at bar any witness having an opinion on the question of incompetency of Ferguson to perform the duties for which he was employed must have acquired it from observing his conduct, manner, and actions while in the performance of his work, or from knowledge of his experience or lack of experience. These matters could be related to the jury by the witnesses substantially as they were observed by the witnesses, and the jury were just as capable of drawing just inferences from them as were the witnesses themselves. This being so, it was the province of the jury to draw the inference, and it was error to let the witnesses draw it for them.

The cases on this precise question are conflicting, but it seems to us that the great weight of authority is with the rule as we have stated it. Mr. Thompson states the rule as follows 'It may be stated as a general rule that, if the facts of any particular inquiry can be so placed before the jury that, as men of ordinary intelligence, they can fully understand the matter and draw the proper inferences and conclusions therefrom, the opinions and conclusions of a witness, whether an expert or a nonexpert, should not be received.' Thompson, Commentaries on the Law of Negligence, § 7747. In 17 Cyc. 56, this language is used: 'The issue of negligence can in most cases well be determined by the judgment of a jury, and the...