McKelvey v. The Cues.
| Citation | 35 W.Va. 500 |
| Court | Supreme Court of West Virginia |
| Decision Date | 12 December 1891 |
| Parties | Ella McKelvey, Adm'x v. The Cues. & Ohio R'y Co. |
A locomotive engineer, without any experience 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.
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of fact offered after argument of counsel before the jury and the giving of instructions and submitted to the jury, are withdrawn after the jury have been deliberating upon them for more than two hours, against the protest of the party offering them.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.
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 the syllabus of Hoffman v. Dickenson, 31 W. Va 142.)
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 whet her the engineer's continuing to run the engine, with knowledge of its condition, was from the character of the defects under all the circumstances, such contributory negligence in the engineer as to prevent recovery.
Instructions must not be inconsistent with each other.
A bad instruction is not cured by a good one, though they be given on the motion of adverse litigants. The bad instruction should be withdrawn.
Simms $ Enslow for appellant, cited 28 Ga. 237; 9 Fed. Rep. 65; 53 Mich. 63, 76; 31 W. Ya. 149; Id. 685; 76 Pa. St. 389; 100 U. S. 225; 110 Mass. 240; Whar. Neg. (2d Ed.) § 221; Wood Mas. & Serv. §§ 378-380; 21 Kan. 484, 503; 116 Ind. 144; 1 Work Pr. § 683; Thom. Pr. § 372; 73 Mich. 331; 41 Kan. 528; 43 Kan. 399.
W. W. Adams for appellee, cited;24 W. Ya, 37; Wood R'y Law § 371; 27 W. Ya. 75, 285; 30 W. Ya, 798; 31 W. Ya. 152; Id. 662; Id. 370; 117 U. S. 621; 29 W. Ya. 107; 21 Gratt. 800; 1 \Y Ya. 219; 7 W. Ya. 725; 8 "W. Ya. 320; 27 W. Ya, 75; 24 AY. Ya. 42, 61; Abb. Trial Brief §§ 50, 51, 54; 2 Thomp. Trials 2674, 2688; 1 Rob. (N Y.) 632; 5 Rob. (]ST. Y.) 507; 34 Ind. 329; 87 Ind. 205; Code, c. 131, s. 5; 25 W. Ya. 64; 30 Ind. 373, 377; 52 Ind. 239, 241; 95 Ind. 491; 96 Ind. 451; 12 Minn. 530; 14 Or. 65; 28 Tex. 383, 411; 5 Rob. (N. Y.) 507; 8 Kan. 480; 50 Ind. 239; 95 Ind. 491; 96 Ind. 450; 1 Rob. (N. Y.) 632; 14 Johns. 84; Code e. 131, s. 5; 2 F. F. 533; 8 Allen 441; 76 Pa, 389; 49 N. Y. 521; Wood R'y Laws § 371.
This case was tried before a special judge in the Circuit Court of Fayette county, and resulted in a verdict and judgment for the plaintiff of ten thousand dollars in an action brought by Ella McKelvey, administratrix of Theodore F. McKelvey, deceased, against the Chesapeake and 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 Calliney? He stated that he wras a locomotive engineer, and had been running about five years, and before that had fired over three years; that staybolts 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. lie 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 twenty five 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 he 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 principles 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, hut 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 expert. If this witness is to justify his evidence because he is an expert, he can not do so; for an expert must be specially skilled in his line.
The non-expert testifies as to conclusions which may he verified by the Court or jury; the expert to conclusions which can not 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 mill-wright 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. R. R. Co., 14 Mich., 497, said, He must have " a special practical acquaintance with the Immediate line of inquiry." Whart. Ev. § 439.
Reference is made to Bird's Case, 21 Gratt. 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 expert-ness is required." This is an exceptable statement, but this witness does not fall within it. He has no knowledge derived from study or experience in the construction or repair or 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 a 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 he 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. 1 Rob. Prac. 232 for full discussion of subject.
I note in Rogers on Expert Test. 237 the citation of Chicago $c. B. B. Co. v. Shannon, 43 111. 339, for the proposition that "the opinions of a locomotive engineer are admissible on the question wdiether the boiler of an engine was safe." Reference to that case showrs 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, 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 perform, expressly shows the witness a machinist.
What has been said as to Culliney's evidence is applicable to Bartlett's. The evidence of both which was objected to was 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 for instance distance, duration and value 1 Whart. Ev. § 509; 26 W. Ya. 798; but as to other matters opinion evi- denced is not admissible, but the facts and circumstances must he stated, 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. Whart. Ev. § 513; opinion in Taylor v. Co. 33 W. Ya. 54, 16 W. Ya. 260. In Welch v. Ins. Co. 23 W. Ya. 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.
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