Mckelvey v. Chesapeake & O. Ry. Co

• Court: Supreme Court of West Virginia
• Citation: 14 S.E. 261,35 W.Va. 500
• Decision Date: 12 December 1891
• Parties: McKelvey. v. Chesapeake & O. Ry. Co.

14 S.E. 261
35 W.Va. 500

McKelvey.
v.
Chesapeake & O. Ry. Co.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1891.

Death of Railroad Employe — Defective Engine— Knowledge of Engineer—Instructions —Withdrawing Interrogatories from Jury.

1. A locomotive engineer, without any ex-perieace or skill in the construction or repair of boilers, is not an expert as to the effect of broken stay-bolts in the boiler, or of mud packed therein. His opinion is not admissible.

2. Interrogatories as to material questions of fact, offered after argument of counsel before the jury and the giving of instructions, and submitted to the jury, are withdrawn, after the jury have been deliberating upon them for more than two hours, against the protest of the party offering them. Their withdrawal is error, not justified on the plea that they were offered too late.

3. An instruction that, if a locomotive engine is in defective, dangerous condition, and the defendant company knew it, and by conduct, actions, or words lulls its engineer into a feeling of security, whereby he is killed, the company is liable, is erroneous, because it omits altogether the element of the engineer's ignorance of the defective and dangerous condition of the locomotive. Point 10 in syllabus of Hoffman v. Dickinson, 31 W. Va. 142, 6 S. E. Rep. 53.

4. An instruction that, if the death of a locomotive engineer is caused by explosion of the boiler of the locomotive, and the explosion was caused by the defective condition of the boiler, and the company operating the locomotive knew of such condition of the boiler and could have repaired it, even if the engineer knew of such condition of the boiler, but had ground to believe that the company would immediately cure the defects, the jury must find for the plaintiff in a suit to recover for the death of the engineer, is erroneous, (1) because it contains no element of a promise to repair, express or fairly implied; (2) if it did, it takes it from the jury to say whether the engineer's continuing to run the engine, with knowledge of its condition, was from the character of tne defects, under all the circumstances, such contributory negligence in the engineer as to prevent recovery.

5. Instructions must not be inconsistent with each other.

6. A bad instruction is not cured by a good one, though they be given on the motion of ad-

[14 S.E. 262]

verse litigants. The bad instruction should be withdrawn.

(Syllabus by the Court.)

Error to circuit court, Fayette county.

Action by Ella McKelvey, administratrix of Theodore F. McKelvey, deceased, against the Chesapeake & Ohio Railway Company, to recover damages for the death of deceased through defendant's negligence. Verdict and judgment for plaintiff. Defendant brings error. Reversed.

Simms & Enslow and J. E. Chilton, for plaintiff in error.

Adams & Miller, for defendant in error.

Beannon, J. This case was tried before a special judge in the circuit court of Fayette countv, and resulted in a verdict and judgment for the plaintiff of $10,000 in an action brought by Ella McKelvey, administratrix of Theodore F. McKelvey, deceased, against the Chesapeake & Ohio Railway Company, to recover damages for the death of Theodore F. McKelvey, caused by an explosion of the boiler of a locomotive of which said McKelvey was engineer. The defendant brought the case here. The first question is, did the court err in admitting certain evidence of John Callinay? He stated that he was a locomotive engineer, and had been running about five years, and before that had fired over three years; that stay-bolts were used to strengthen the boiler according to his idea; that he did not understand the construction of a boiler thoroughly; that he had never had any experience in boiler-making. He then stated that stay-bolts were used on the boiler sheet on each side of the fire-box, and all around the fire-box. Then the plaintiff asked him, "Do you know what the effects of broken stay-bolts would be?" and he answered: "I think it would have a tendency to weaken the boiler. If the stay-bolts are to strengthen the boiler, of course broken ones would have a tendency to weaken it." He was then asked, "Suppose an engine had 25 broken stay-bolts on each side, front, corner, and top, what would be the effect on the boiler?" and answered: "The only effect I know it would have on the boiler would be to weaken it." The locomotive, that wonder of our days, is the embodiment of great mechanical genius, study, science, skill, and experience. It daily stands before us, who have no learning and skill in that department of human knowledge, as an insoluble enigma. None but those whose eyes and brains are trained in its principle and construction can pierce its secrets, and as experts adequately or reliably tell of its elements and their office. Every one may, it is true, have an opinion from observation, but it is an untrustworthy opinion, not ranking in reliability as that of one proficient in the art of its construction. This witness had simply used engines as an engineer, and had perhaps become acquainted with the practical working of some of their parts, but that is all. He shows, himself, that he is not an expert. If this witness is to justify his evidence because he is an expert, he cannot do so; for an expert must be specially skilled in his line. The non-expert testifies as to conclusions which may be verified by the court or jury; the expert, to conclusions which cannot be. The non-expert gives results of a process of reasoning familiar to every-day life; the expert gives the results of a process of reasoning which can be mastered only by special scientists. 1 Whart. Ev. §§ 434, 439. A millwright may give his opinion as to skillfulness of work done on a mill, but not a miller. Walker v. Fields, 28 Ga. 237. Cooley, J., in Sisson v. tiailroad Co., 14 Mich. 497, said: None but an expert can give his opinion, from appearance of an engine, whether it could draw a train. "A person having a mere vague, superficial knowledge of a profession ought not to be permitted to lay down its laws." He must have a "special, practical acquaintance with the immediate line of inquiry." Whart. Ev. § 439. Reference is made to Bird's Case, 21 Grat. 800, for the proposition that "all persons who practice a business or profession which requires them to possess a certain knowledge of the matter in hand are experts, so far as expertness is required." This is an acceptable statement, but this witness does not fall within it. He has no knowledge derived from study or experience in the construction or repair of locomotives. In the case cited a priest was held competent to speak of the law relating to marriage, where he celebrated marriages, because it was within his particular line of duty and experience. And the English case relied on in Bird's Case for the doctrine was where an hotel-keeper in London, a native of Belgium, who there had carried on the business of merchant and commissioner of stocks, was allowed to prove the law of Belgium as to presentment of a note made there, payable at a particular place, because ho had been situated so as to call him to become acquainted with the law on that particular subject; and this is justified by the rule that it does not require a lawyer to prove foreign law. See 1 Rob. Pr. 232. for full discussion of subject; note in 1 Rog. Exp. Test. 237, the citation of Railroad Co. v. Shannon, 43 111. 339, for the proposition that "the opinions of a locomotive engineer are admissible on the question whether the boiler of an engine was safe. " Reference to that case shows in the syllabus and opinion that such evidence was held admissible to prove, not that the engine was in fact unsafe, —a matter that was proven by makers of boilers, —but to prove that among the employes the engine was regarded unsafe, and had a bad reputation, for the purpose, as an item of evidence, of bringing home to the company knowledge that such engine was unsafe, or putting them on inquiry as to its condition. The case of Sheldon v. Booth, 50 Iowa, 209, cited by same author (page 260) for the proposition that it is not necessary in all cases that a witness should be a machinist to give an opinion as to what work a machine can perforin, expressly shows the witness a machinist. What has been said as to Callinay's evidence is applicable to Bartlett's. The evidence of both, which was objected to, was

[14 S.E. 263]

not admissible as if they were experts. But though a witness may not express an opinion as an expert, yet he may express an opinion as to some matters, because as to those matters opinion is admissible; as.forinstance, distance, duration, and value, (1 Whart. Ev. § 501): Hargreaves v. Kim-berly.26 W.Va. 788;) but as to other matters, opinion evidence is not admissible, but the facts and circumstances must bestated, and the jury are to thence form their own opinion, because these matters are of such nature as that a jury having the facts can form an opinion just as well as the witness. 1 Whart. Ev. § 513; opinion in Taylor v. Railroad Co., 33 W. Va. 54, 10 S. E. Rep. 39; James v. Adams, 16 W. Va. 260. In Welch v. Insurance Co., 23 W. Va. 288, witnesses' opinions as to whether a quantity of wool burned could have been completely destroyed in the burning of a building of a certain size were not allowed, the court saying the jury ought to form its own opinion from the facts disclosed.

The next question is, did the court err in withdrawing the special questions? The defendant asked the court to require the jury, should they find a general verdict, to return answers to the following particular questions: "First. Was the locomotive engine which exploded and killed Theodore McKelvey out of repair and defective at the time of the explosion? (second. If it was out of repair and defective, how long had it been so? Third. Did the defendant know, or could it have known by reasonable care, prior to the explosion, that it was out of repair and...