The Louisville, Evansville And St. Louis Consolidated Railroad Company v. Berry

• Decision Date: 23 November 1893
• Docket Number: 987
• Parties: THE LOUISVILLE, EVANSVILLE AND ST. LOUIS CONSOLIDATED RAILROAD COMPANY v. BERRY
• Court: Indiana Appellate Court

35 N.E. 565

9 Ind.App. 63

THE LOUISVILLE, EVANSVILLE AND ST. LOUIS CONSOLIDATED RAILROAD COMPANY v. BERRY

No. 987

Court of Appeals of Indiana

November 23, 1893

Reported at: 9 Ind.App. 63 at 68.

From the Dubois Circuit Court.

Judgment affirmed, at the costs of appellant.

J. E Iglehart, E. Taylor, J. L. Bretz and W. E. Cox, for appellant.

A. J Padgett, W. R. Gardner, C. G. Gardner and S. H. Taylor, for appellee.

OPINION

LOTZ, J.

This case is before this court for the second time. Louisville, etc., R. R. Co. v. Berry, 2 Ind.App. 427, 28 N.E. 714.

The character of the case, and the issues joined, are there stated, and need not be repeated here.

After the reversal of the cause, the case was again tried in the circuit court, before a jury, and resulted in a verdict and judgment in favor of the appellee in the sum of $ 1,067.

The only error assigned on this appeal is that the trial court erred in overruling the motion for a new trial.

The appellant produced a witness, who was its foreman, and under whom the deceased worked. The said witness testified that he informed the deceased of the dangerous character of the work about the steam plugs, and instructed him how the work should be done.

Appellant then produced another witness, who testified that he was a locomotive engineer of eight years' experience, and was familiar with the character of the work at which the deceased was engaged at the time he met his death; and then propounded to such witness this question: "I will ask you whether or not it was careless for a young man to go under an engine and attempt to tighten a plug when it was leaking steam and hot water?"

An objection was sustained to this question, and appellant then offered to prove by the witness that it was careless conduct on the part of the deceased to go under the engine and attempt to tighten the plug when it was leaking steam and water.

This offer was excluded, and proper exceptions were taken.

The contention is, that as the work, which necessity required should be done, was highly dangerous, the manner in which it was done became important; that the hazard and want of care involved in the method adopted by the deceased were not matters of common knowledge, and hence the necessity for expert and opinion evidence.

It is no unusual procedure for an expert witness to state his opinion as to whether or not certain conduct was proper or improper, skillful or unskillful. And it is sometimes proper for a nonexpert witness to give his opinion based upon his personal observation and experience as to the effect of certain conditions and facts. Clinton v. Howard, 42 Conn. 294; Bennett v. Meehan, 83 Ind. 566.

The questions the jury were required to determine, under the issues of this case, were whether or not the appellant had been guilty of negligence, and whether the deceased was free from contributory negligence. Negligence is the absence or want of that degree of care that an ordinarily prudent person would exercise under given conditions.

The jury is selected from the body of the community, and is generally composed of men of varied vocations and experiences. It is assumed that they know more of the common affairs of life, and can draw wiser and safer conclusions than can any one man. Hence, ordinarily, negligence is peculiarly a question for the jury. All of the facts of this case were susceptible of being placed before the jury (the different methods of doing the work, and the means used), and from them the jury was as much, or more, capable of determining whether the deceased was careless, as was the expert witness. There was no error in excluding this testimony.

The only other cause for a new trial discussed by appellant is that the verdict is contrary to law.

Immediately after the accident occurred, the deceased was placed on a chair twenty-five or thirty steps away from the place of the accident. He was suffering intensely, and...