Snow v. Cannelton Sewer Pipe Co., 19822

• Decision Date: 14 September 1965
• Docket Number: No. 19822,No. 2,19822,2
• Citation: 210 N.E.2d 118,138 Ind.App. 119
• Parties: Joseph SNOW, Appellant, v. CANNELTON SEWER PIPE COMPANY, Eugene Polk, Appellees
• Court: Indiana Appellate Court

Page 118

210 N.E.2d 118

138 Ind.App. 119

Joseph SNOW, Appellant, v. CANNELTON SEWER PIPE COMPANY, Eugene Polk, Appellees.

No. 19822.

Appellate Court of Indiana, Division No. 2.

Sept. 14, 1965.

Rehearing Denied Oct. 26, 1965.

Transfer Denied Dec. 8, 1965.

[138 INDAPP 121]

Russell S. Armstrong, Evansville, for appellant.

Ralph P. Zoercher, Tell City, for appellees.

HUNTER, Judge.

This is an appeal from an action in negligence brought by plaintiff-appellant against defendants-appellees to recover damages for personal injuries sustained [138 INDAPP 122] by appellant. The trial by jury resulted in a verdict and judgment for Cannelton Sewer Pipe Company and Eugene Polk (defendants) and against Joseph Snow (plaintiff) on his amended complaint. Appellant, Joseph Snow, alleges several errors on this appeal which we will consider separately.

The amended complaint generally alleged that appellees negligently allowed a sewer tile manufactured, processed, loaded and transported by appellees to become 'cracked, broken, weakened, strained, defective and unsafe', and that while in the process of unloading such pipe from appellees' truck, the tile suddenly broke in appellant's hand, injuring his left arm seriously, causing permanent impairment to such limb. Appellee denied these allegations and affirmatively alleged contributory negligence on the part of Snow to which said appellant replied in denial.

Appellant first urges that the trial court erred in admitting certain evidence introduced by appellees. The attorney for the appellees asked the Vice-President of Cannelton Sewer Pipe Company how it selected the men employed to drive its trucks. Appellant objected to this question for the reason that 'it is not an issue here in this case'. Although this objection is too general to adequately present a question for review, we will discuss this assignment of error so far as warranted.

The parties agree that appellant's cause of action principally relies upon the application of the doctrine of res ipsa loquitur doctrine in Baker et al. v. Coca Cola, etc. (1961), 132 Ind.App. 390, 177 N.E.2d 759. On pp. 396-397, 177 N.E.2d on p. 763, there is found the following statement concerning this doctrine:

"'It is well settled that when the instrumentalities which produce an accident are under the exclusive charge of the defendant or his servants, and when the accident is such as does not occur in the ordinary course of events if those in charge use proper care, proof of the accident is sufficient to create a prima facie case of negligence, which [138 INDAPP 123] will prevail unless it is met by evidence to show that the accident could not have been avoided by due care on the part of the defendant."' quoting from New York, Chi., etc., R. R. Co. v. Henderson (1957), 237 Ind. 456, 478-479, 146 N.E.2d 531, quoting from Pittsburgh, etc., R. Co. v. Arnott, Admx. (1920), 189 Ind. 350, 368, 126 N.E. 13. (Our emphasis.)

The law thus permits an inference of negligence to be drawn if certain facts are shown under the rationale that defendant has exclusive control over the agency and plaintiff has no access to information about its control and operation. New York, Chi., etc., R. R. Co. v. Henderson, supra, 237 Ind. at p. 462, 146 N.E.2d 531. After the plaintiff has established his case, the defendant has the burden of going forward with the evidence to explain away the inference. Wass v. Suter (1949), 119 Ind.App. 655, 669, 671, 84 N.E.2d 734. Although though the burden of proof does not shift to the defendant, Wass v. Suter, supra, at p. 671, 84 N.E.2d 734, the establishing of the inference necessitates proof which could explain away such inference. Applying the above rules, we believe that evidence tending to establish that the defendant sewer pipe company exercised care in selecting its truck drivers was sufficiently within the issues of the case, particularly because of the applicability of the res ipsa loquitur doctrine herein. This evidence would tend to establish that in hiring qualified truck drivers the pipe company was exercising due care in 'transporting' the pipe. Therefore, no error was committed in admitting the above evidence in that such testimony was 'within the issues' of the case.

An allied claim of error urged by appellant is the admission by the trial court of evidence establishing the fact that Eugene Polk, the truck driver, was not arrested for any motor vehicle violation on the day prior to the accident. Appellant again objected as he argues here on appeal on the ground that this evidence was not within the issues of the case. Here again we have evidence concerning[138 INDAPP 124] the 'transportation' of appellee's product and it is therefore within the issues of this case. It is true that this is negative evidence and considered weak, especially as opposed to positive evidence. 20 Am.Jur., Evidence, Sec. 254. Nevertheless, such negative testimony is admissable. Angola State Bank v. State ex rel. Sanders (1944), 222 Ind 244, 252, 52 N.E.2d 620.

The above questions are being decided on the merits although appellant did not properly object to the admission of the above evidence. Objecting to the admissability of evidence on the grounds that it does not prove or disprove anything in issue is a general objection and does not present a question for review. Ward Bros. Co., Inc. v. Zimmerman, Admx. (1932), 92 Ind.App. 130, 134, 180 N.E. 25. Appellant objected to the above evidence on the general ground that such was outside the issues of the case. However, in the interest of completely deciding this case on the merits so far as possible and to insure a better understanding of this case, we have discussed the above questions.

Appellant next asserts that the court erred in admitting certain expert testimony submitted by the appellees. Following is the question to the expert witness and objection thereto:

'Q. In your opinion, Mr. Clemens, could this sewer pipe have broken in the manner as described by Joseph Snow?

Mr. Armstrong: We object to the question for the reason that it is asking for an opinion on a matter that is easily within the knowledge of this jury and therefore is not subject to expert testimony.

By the Court: Why?

Mr. Armstrong: Why? Why it is a mere matter of breakage, that's all it is. It's a matter that has to depend upon all of the facts in the case. There is not any scientific problem involved here; a sewer tile broke.'

We immediately notice that the question to the expert witness was improper in form. The form of a question propounded [138 INDAPP 125] to an expert witness should be hypothetical, stating facts supported by the evidence relative to the matter testified to by the expert. Viant v. Town of Lowell (1947), 117 Ind.App. 354, 356, 72 N.E.2d 239. Such a hypothetical question was not asked by appellees' attorney. However, as can be seen from the above quotation from the transcript, the objection by appellant was not for the reason that no hypothetical question was posed and therefore no question is presented for review on that impropriety. In support of his proposition that the answer elicited by the above question 'invades the province of the jury', appellant principally relies upon Brunker v. Cummins (1892), 133 Ind. 443, 32 N.E. 732. In that case, a lessor caused a barrel to be left on a walk in his building. An invitee (plaintiff) of the lessor (defendant) tripped on the barrel obstructing the walk-way and was injured. The principal question to be decided by the jury was whether the distance between the barrel and the wall of the lessor's building was such as to permit the safe use of the walk. At the jury trial, the attorney asked the defendant-lessor 'whether there was sufficient room, between where that barrel was and the wall, for a man to walk with safety.' The Supreme Court of Indiana held that such a question was improper because the answer sought to be elicited was of such a nature that the jurors were as well qualified to form their own opinion on that matter as the witness. As an added reason for holding that the evidence elicited by the above question was improper, the court stated on p. 449, 32 N.E. on p. 734:

'The question required the witness to express an opinion upon matters respecting which he showed no special knowledge or skill, and this of itself was enough to condemn it.'

In the instant case, there is no doubt that Clemens is an expert on the matter of tile such as that here involved. He was 'Vice-President of the Cannelton Sewer Pipe Company and had been with the company for approximately thirty [138 INDAPP 126] (30) years. He was a graduate ceramic engineer. It was shown by the evidence that he was thoroughly versed in the qualities of the pipe handled by appellant. Snow had previously testified that the tile had broken as he lifted it from the truck and that he did not jar it or drop it thereby causing it to break. We believe that testimony by an expert such as Clemens that the tile could not have broken by the simple process of picking such up was entirely proper. Quoting from a Connecticut decision, this court, in Archer v. Ostemeier (1914), 56 Ind.App. 385, 392, 105 N.E. 522, 524, stated:

"The true test of the admissability of such (expert) testimony * * * is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue'.'

Clemens certainly had peculiar knowledge concerning the breaking qualities of the sewer pipe and such knowledge would not seem to be 'common to the world' or the average juror. In Archer v. Ostemeier, supra, it was held that a qualified witness could properly testify that a wagon could be turned without skidding by driving slowly of if driven rapidly, by slackening the speed before attempting the turn. It would seem that testimony concerning the breakage...