Southern Ry. Co v. Mauzy

• Citation: 37 S.E. 285,98 Va. 692
• Court: Supreme Court of Virginia
• Decision Date: 22 November 1900
• Parties: SOUTHERN RY. CO. v. MAUZY.

98 Va. 692

37 S.E. 285

SOUTHERN RY. CO.

v.MAUZY.

Supreme Court of Appeals of Virginia.

Nov. 22, 1900.

MASTER AND SERVANT—INJURIES TO SERVANT — RAILROADS — LOADING CARS — EVIDENCE—EXPERT TESTIMONY—INSTRUCTIONS —FELLOW SERVANT—CONTRIBUTORY NEGLIGENCE—OBVIOUS DANGER—ASSUMPTION OF RISK.

1. In an action by an employe against a railroad company for injuries received while loading car wheels on a flat car, it is error to permit witnesses to give opinions as to the best aud safest method of loading such wheels, since expert testimony is not necessary to explain the subject under consideration.

2. In an action by an employe against a railroad for injuries sustained while loading car wheels on a flat car, it is error to permit plaintiff to prove, over objection, the manner in which such wheels were loaded by another railroad company, though the skid used in such work was borrowed from such other railroad.

3. It is error to charge, in an action by an employe for injuries received, that one of the personal duties of the master is to furnish safe and sound machinery for the use of the servant, since it is his duty to use only ordinary care and diligence to provide reasonably safe and suitable machinery.

4. An instruction in an action by an employe for injuries sustained, that, if P. was foreman of a certain department, with power to employ and discharge plaintiff, he was not a fellow servant of such plaintiff, is erroneous, where P. was helping plaintiff at the time of the accident.

5. In an action by an employs for injuries sustained it is error to refuse to instruct that, if the evidence shows that plaintiff contributed towards the accident of which he complained by his own negligence or carelessness, and that such negligence or carelessness was the proximate cause of his injuries, and could have been avoided by the use of ordinary care on plaintiff's part, defendant was not liable.

0. Where an employe of ordinary intelligence was injured while loading car wheels on a flat car by means of an inclined skid, and it was shown that a fellow employe recognized the danger when the wheels had been elevated to a certain height, and stepped, aside, escaping uninjured, it is error to refuse to instruct that, if the work was such that by the nature of the employment such employe might be called on to perform, he assumed all risks from causes which were known to him, or which were open and obvious.

Appeal from circuit court, Rockingham county.

Action by Clarence H. Mauzy against the Southern Railway Company. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

Downing & Richards, for appellant.

Winfield Liggett, for appellee.

HARRISON, J. This action was brought by Clarence H. Mauzy against the Southern Railway Company to recover damages for injuries alleged to have been sustained by him in consequence of the negligence of the defendant company. At the time of the accident in question, the plaintiff was an employe of the defendant, and was assisting other laborers in loading car wheels upon a flat car. The gravamen of the plaintiff's complaint is that the defendant negligently failed to provide safe and adequate appliances for doing the work in the usual and most approved method.

The court is of opinion that it was error to permit the witnesses James Lewis, John Kelly, and Joseph B. Newman, to testify, over the objection of the plaintiff, as to the best and safest mode of loading car wheels on a flat car. These witnesses were not shown to be experts, or to have had any such experience as would entitle them to express an opinion on the subject. Nor does it appear that expert testimony was necessary to ex-plain or elucidate the subject under investigation. The question of danger or safety In loading car wheels In a particular mode Is one which any person of common Intelligence and observation could as readily determine as the so-called expert. No principle of law is better settled than that the opinions of witnesses are, in general, inadmissible; that witnesses can testify to facts only, and not to opinions or conclusions based upon the facts. Hanriot v. Sherwood, 82 Va. 1; Hammond v. Woodman, 41 Me. 177, 66 Am. Dec. 219. To this general rule there are exceptions. The case at bar, however, does not come within their influence. In the valuable note to the case last cited (66 Am. Dec. 228) it is said, with abundant authority in its support, that "the competency of expert testimony in a particular case depends upon the question as to whether or not any peculiar knowledge, science, skill, or art not possessed by ordinary persons is necessary to the determination of the matter at issue; * * * that expert testimony is not admissible as to matters within the experience or knowledge of persons of ordinary information, as to which the jury are competent to draw their own inferences from the facts given in evidence before them, without extraneous aid other than the instruction of the court upon questions of law."

The court Is further of opinion that it was error to permit the plaintiff, over the defendant's objection, to prove the mode adopted by the Baltimore & Ohio Railroad Company for loading car wheels on a flat car. A witness having sufficient knowledge may testify as to the general practice of railroads in doing the work in question, and the comparative safety of different methods; but it is not competent to show that the different method of another railroad Is better than that of the defendant. It is supposed that in such matters even the skillful and experienced will frequently differ in their choice of instrumentalities. A party should not be adjudged negligent for not conforming to some other method believed by some to be less perilous. Locomotive Works v. Ford, 94 Va. 627, 27 S. E. 509. Nor is this rule avoided or varied, as contended, by the fact that the declaration alleges that the skids used by the defendant company at the time of the accident were borrowed from the Baltimore & Ohio Railroad Company, and that said company employed other appliances in connection with such skids when loading a truck, or pair of car wheels, on a flat car; that being the usual, approved, and safe method of performing such work. It was entirely competent to sustain the allegations of the declaration by proof showing that the skids were borrowed from the Baltimore & Ohio Railroad Company, and what, if any, method was generally adopted by railroads as the best and safest for accomplishing such work. Not a witness, however, was asked as to the usual, approved, and safe method of loading car wheels generally employed, but the sole inquiry was as to the practice adopted by the Baltimore & Ohio Railroad Company, and the...