Kaminski v. Tudor Iron Works

• Decision Date: 12 March 1902
• Citation: 67 S.W. 221,167 Mo. 462
• Parties: KAMINSKI v. TUDOR IRON WORKS.
• Court: Missouri Supreme Court

67 S.W. 221

167 Mo. 462

KAMINSKI v. TUDOR IRON WORKS.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

SERVANTS — PERSONAL INJURIES — EXPERT TESTIMONY — INSTRUCTIONS — PLEADING — GENERAL DENIAL.

1. An expert familiar with a particular appliance may give an opinion as to its sufficiency, based on his own knowledge, without requiring the attorneys conducting his examination to describe a hypothetical machine to him.

2. In an action by a servant for injuries, defendant's testimony, tending to show that plaintiff and his co-employés, while turning the crank of a derrick, carelessly released their hold too soon, thereby letting the load fall too rapidly, and causing plaintiff's injury, justified an instruction on contributory negligence.

3. The testimony justified an instruction on the master's liability for the negligence of fellow servants.

4. The defense that a servant's injuries were caused by the negligence of his fellow servants is admissible under a general denial.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Action by John Kaminski against the Tudor Iron Works. Judgment for defendant, and plaintiff appeals. Affirmed.

Sterling P. Bond, for appellant. G. A. Finkelnburg, for respondent.

ROBINSON, J.

This is a suit by plaintiff to recover damages for the loss of a thumb, alleged to have been caused by the negligence of defendant. The negligence charged in plaintiff's petition is twofold: First, the failure of defendant to provide a reasonably safe appliance with which to do the work he and others engaged with him were required to perform, in this: that the derrick or hoisting machine at which he and his co-laborers were working was not furnished with a brake or dog to arrest or stay the load that was placed upon its arms or crane while being hoisted or lowered by use of the machine; and, secondly, because of the failure of defendant to furnish a sufficient number of men to operate the derrick when so heavily loaded as upon the occasion of plaintiff's injury. The answer is a general denial, with a plea of contributory negligence on the part of plaintiff. The case was tried by a jury under instructions from the court, and resulted in a verdict and judgment for defendant; and plaintiff, after the usual steps taken, has brought the case here for review.

Appellant's first and chief assignment of error is to the action of the trial court in permitting, over his objection, several witnesses called by defendant, who were shown to be perfectly familiar with the appliance at which plaintiff was at work when he received his injury, to testify as experts upon the question as to whether, in their opinion, a brake or dog upon such a machine was practicable, or otherwise, and also to give their opinion, from their personal knowledge of the appliance used, as to the number of men necessary to operate it with safety to those employed when hoisting or lowering a load such as was shown at that time to have been placed upon the machine. The witnesses called by defendant were the foreman of defendant's works where the plaintiff was employed, the master mechanic at the works, the machinist, the head roller, and the president of defendant company, who was also shown to be a civil and mechanical engineer, and who caused the derrick to be constructed, and had seen it in constant use for a period of 18 years. Appellant's contention, as we are able to gather it from his brief, seems to be that expert testimony in matters of this character can be given only upon a hypothetical question put to each witness called; that the witness called as an expert can give his opinion only on facts shown in evidence by others, and assumed to be true, as a basis for his opinion. While it is true that the opinion of an expert witness must be based upon the facts of the case, and, generally, as detailed in the testimony of some previous witness or witnesses, we can see no good reason why a witness should not be allowed to give his opinion on the same facts, presumably within his own personal knowledge, from a long and familiar association and contact with the thing or fact about which his opinion as an expert is sought, without requiring the attorneys conducting the examination to go through the useless form of reciting to the witness a description of a hypothetical machine (as the one at which plaintiff was working), with all of its attachments, connections, and appliances, defective as the verbal photograph by the examining attorney must, of necessity, be, as compared with the likeness of the machine in the mind of the witness, who has daily observed and directed its operations for years, or of a witness who had previously examined and studied the machine with a view of qualifying himself as a witness in the case. All the witnesses called by plaintiff were asked to give testimony based upon their...