Tinney v. Crosby

• Decision Date: 07 October 1941
• Docket Number: No. 1039.,1039.
• Citation: 112 Vt. 95,22 A.2d 145
• Court: Vermont Supreme Court
• Parties: TINNEY v. CROSBY.

22 A.2d 145

112 Vt. 95

TINNEY

v. CROSBY.

No. 1039.

Supreme Court of Vermont. Rutland.

Oct. 7, 1941.

[Copyrighted material omitted.]

Exceptions from Rutland County Court; Stephen S. dishing, Judge.

Action in tort for personal injuries by Harry Tinney against Elbert C. Crosby, wherein there was a verdict for plaintiff. On defendant's exceptions.

Reversed and remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Asa S. Bloomer, of Rutland, for plaintiff.

Lawrence & O'Brien, of Rutland, for defendant.

MOULTON, Chief Justice.

The plaintiff was struck and severely injured by a stone thrown as the result of a blasting operation, in which he was employed. He brought this action in tort against the defendant, who was in charge, alleging negligence in the amount of explosive used, in the manner of placing it, and in failing to supply him with a safe place in which to do his work. The verdict was for the plaintiff, and the cause is here on the defendant's exceptions. These exceptions are to the admission of certain opinion evidence, and to the denial of a motion for a verdict.

The exceptions to the evidence present only one question. The plaintiff called several witnesses who testified to their experience in blasting and in the use of dynamite and other explosives. Each was asked substantially the same questions and was permitted to give substantially the same answers, subject to clearly expressed exceptions by the defendant. One instance will suffice to illustrate the point involved.

The witness Adelord Merrow was asked whether, based upon the evidence in the case, he had an opinion as to the cause of the injury to the plaintiff, and answered that he had. The next question was: "State what in your opinion was the cause of the injury to this plaintiff?" To which he replied: "Well I should call it negligent use of high explosive." A motion to strike out this testimony was made and denied, subject to defendant's exception.

No. 47, Acts of 1939, upon which the plaintiff relies to support the rulings to which we have just referred, reads as follows:

"Section 1. Experts, testimony. An expert witness may be asked to state his opinions, whether these opinions are based on the witness' personal observation, or on evidence introduced at the trial and seen or heard by the witness, or on his technical knowledge of the subject, without first specifying hypothetically in the question the data on which these opinions are based.

"Sec. 2. Same. An expert witness may be required, on direct or cross-examination, to specify the data on which his opinions are based."

This statute is practically identical with section 9 of the Uniform Expert Testimony Act, adopted by the National Conference of Commissioners on Uniform State Laws, in 1937, the only difference being that in the Act, as framed by the conference, the word "inferences" is used, where our act employs the word "opinions;" and it is the only part of the Uniform Act that has been passed by the Legislature of this State. The purpose and intent of the Statute, as clearly appears not only from its wording but from the comment appended thereto in the 1937 Handbook of the Conference, pp. 345-347 which we may refer as an aid to its construction (People's Savings & Trust Co. v. Munscrt, 212 Wis. 449, 249 N.W. 527, 250 N.W. 385, 88 A.L.R. 1306, 1308, 1312), is to exempt the offering party from the requirement of using the hypothetical question in the examination of expert witnesses, but to accord him the option of using it, both to be left to the discretion of the trial Court, and to permit the opposing party on cross examination to call for a hypothetical specification of the data which the witness has used as the basis of his opinion. See Wigmore, Evidence, 2d Ed, Sec. 686, quoted in the comment above referred to. It does not enlarge the scope of expert testimony or the class of subjects upon which opinion evidence is receivable. As the comment states, there is "no attempt to obstruct or limit the jury in its determination of the ultimate fact."

There was prejudicial error in the admission of the evidence and in the refusal to strike the answer from the record. The facts and circumstances of the case were susceptible of being made clear to the jury. The inference to be drawn from the evidence, if it fairly supported the plaintiff's claim, was one which the members of the jury, exercising their sound judgment under the instructions of the Court, were capable of drawing for themselves and did not require a particular knowledge and skill. The question of the defendant's negligence was, under such circumstances, for them to determine, and was not the subject of opinion evidence. This principle has been recognized in many decisions of this Court. Hutchinson v. Knowles, 108 Vt. 195, 204, 184 A. 705; Lucas v. Kelley, 102 Vt. 173, 176, 147 A. 281; Landry v. Hubert, 100 Vt. 268, 275, 137 A. 97; Desmarchier v. Frost, 91 Vt. 138, 143, 99 A. 782; Houston v. Brush, 66 Vt. 331, 338, 29 A. 380; Stowe v. Bishop, 58 Vt. 498, 500, 3 A. 494, 56 Am.Rep. 569; Bemis v. Central Vermont R. R. Co., 58 Vt. 636, 639, 3 A. 531; Weeks v. Lyndon, 54 Vt. 638, 640, 645; Oakes v. Weston, 45 Vt. 430, 432; Fraser v. Tupper, 29 Vt. 409, 410, 411; Clifford v. Richardson, 18 Vt. 620, 626; Lester v. Town of Pittsford, 7 Vt. 158, 161, 162. See also, to the same effect: Inland and Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 559, 11 S.Ct. 653, 35 L.Ed. 270, 273; Whitman v. Boston Elevated Co., 181 Mass. 138, 139, 63 N.E. 334; Twomey v. Swift, 163 Mass. 273, 275, 39 N.E. 1918; White v. Ballou, 8 Allen, Mass, 408, 409; New Haven Rendering Co. v. Connecticut Co., 89 Conn. 252, 93 A. 528, 531; Kelly v. City of Waterbury, 96 Conn. 494, 114 A. 530, 531; Baltimore, C. & A. R. Co. v. Moon, 118 Md. 380, 84 A. 536, 539; Hanrahan v. Baltimore, 114 Md. 517, 80 A. 312, 317; Taylor v. Kevlin, 121 N.J.L. 142, 1 A.2d 433, 435; Krieg v. Timken, 102 N.J.L. 307, 131 A. 905, 906; Chambers v. Mesta Machine Co., 251 Pa. 618, 97 A. 101, 103; Hill v. Portland, etc, R. R. Co., 55 Me. 438, 92 Am.Dec. 601, 605. What we have just said disposes of all the exceptions taken to this sort of testimony.

The motion for a directed verdict was based upon three grounds: (1) That there was no evidence fairly and reasonably tending to show that the defendant was negligent; (2) that the evidence showed, as a matter of law, that the plaintiff was contributorily negligent; and (3) that he assumed the risk. In passing upon this motion we leave out of consideration the opinion evidence which we have just held was erroneously received, under objection and exception. Booth v. New York Cent. R. R. Co., 95 Vt. 9, 15, 112 A. 894; Creech v. New York C. & St. L. Ry. Co., 22 Ohio App. 216, 153 N.E. 299, 300; Sartain v. Walker, 60 Okl. 258, 159 P. 1096, 1105; Gillett v. Burlington Ins. Co., 53 Kan. 108, 36 P. 52, 53.

In passing upon the motion for a directed verdict, the evidence must be taken in the light most favorable to the plaintiff, and the ruling of the trial court sustained if the evidence, so viewed, fairly and reasonably tends to support the verdict. Picknell v. Bean, 99 Vt. 39, 41, 130 A. 578; Mac-Donald v. Orton, 99 Vt. 425, 427, 134 A. 599. The effect of modifying evidence is to be excluded. Ste. Marie v. Wells, 93 Vt. 398, 399, 108 A. 270. Contradictions and contradictory inferences are for the jury to resolve. Lee v. Donnelly, 95 Vt. 121, 128, 113 A. 542; Comeau v. C. C. Manuel & Sons Co., 84 Vt. 501, 509, 80 A. 51. The tendency of the evidence and not its weight is to be considered. Cummings v. Connecticut Gen. Life Ins. Co., 101 Vt. 73, 85, 142 A. 82; Fraser v. Blanchard, 83 Vt. 136, 147, 73 A. 995, 75 A. 797.

An examination of the record with the foregoing principles in mind shows that it was open to the jury to find these facts: The purpose of the blasting was to remove boulders from the bed of a stream known as Roaring Branch Brook in order to prevent flooding of the adjacent land and highway in times of high water. These boulders were composed of hard brittle stone, of varying size and weighing on the average 15 to 20 tons. Some were embedded in the gravel, and the bed of the stream was thickly covered with them. The course of the stream, at the places where the blasting was done, is from north to south, and its average width is twenty-five to thirty feet.

The plaintiff, who was one of the gang of men employed in the blasting operations, lived with his family in a house situated about 600 feet west of Roaring Branch Brook. He was forty years old, and had worked as a common laborer. Five years before the accident he had served as temporary helper to a dynamite foreman for about two months on highway work, his duties being to bring the boxes of dynamite to the place of the blast, and then to go some distance away to give warning to anyone who might be approaching, although there were a few times when he would take shelter with the foreman when the latter exploded the charge. He had also been permitted to explode some very small blasts involving small stones, under the personal supervision of his foreman who refused to recommend him as being competent for a position as dynamiter.

The blasting had been going on for three days previous to the one upon which the plaintiff was injured. The method employed was what was termed as "open blasting." A number of sticks of 60% dynamite would be inserted in a cavity dug under the boulder to be removed, detonating caps adjusted and attached to a wire which led to a battery operated by pushing down a plunger. Several charges, as many as six or seven, put in different cavities, under different boulders, would be connected and exploded simultaneously. The charge varied with the size of the cavity, but no more than 50 pounds in any one place, and on the average a little less than 150 pounds in an entire blast. The battery, on the first three days, was placed...