St. Louis Southwestern Railway Co. v. Plumlee

Wood, J., (after stating the facts.) 1. Appellant’s counsel contend that witnesses Orear and Thompson were not competent to give an opinion that any particular condition of the handcar was a defect, nor as to what would be the result of operating a handcar with defects, until they had qualified themselves as experts. Conceding, as this does, that a handcar is such a machine as requires expert testimony to determine what would be the effect of operating a defective one and what would be a defect in any particular condition of the car, we must say that the witnesses, in our opinion, have sufficiently qualified themselves to give expert testimony. The record does not warrant the conclusion that a handcar was such a complicated machine that great length of time employed in the use and. operation thereof was necessary in order to enable one to understand its various parts, whether they were defective or not, and what would be the consequences of the operation of a defective one. Orear had run a handcar “off and on” for about three years, and Thompson had about fifteen or twenty years’ experience in operating cars. He could take one to pieces, and put it together again. We very much doubt whether any peculiar skill, or special habits of study, or any unusual knowledge was necessary in order to master the details of handcar machinery and its operation. But, if so, then Orear and Thompson showed sufficient familiarity and knowledge of the subject-matter to entitle them to testify as experts, and their testimony was properly admitted. 2. Instructions one and two given by the court were abstract, and moreover were not accurate statements of the law upon the subjects intended to be covered by them. If it was a question of fact as to whether or not Hopkins was inexperienced, there was no evidence whatever that appellant had notice or knowledge of such inexperience. 'And while it is the duty of the master to warn its servants of certain kinds of defects in machinery and the danger likely to ensue from the operation thereof, it is not the duty of the master to warn its servants of all dangers that are incident to the business about which the servant may be employed, as the first instruction might be construed to mean. But these instructions, when taken in connection with instruction number four and with instructions given at request of appellant, especially those ^numbered one, three, eight, ten, eleven and twelve, could not have been prejudicial, for the whole matter covered by instructions one and two given by the court and the particulars wherein they needed explanation were covered fully by other instructions given, and that too in a more favorable light in some respects than appellant had the right to demand. Instruction number three given by’the court was defective in form, but appellant did not ask to have it corrected by suggesting the proper qualification. The exact point covered by this instruction is ruled by St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255. The court did not err in refusing instruction number six asked by appellant. The instruction was abstract and misleading. Besides, it leaves out all knowledge on the part of Hopkins of the defects mentioned and the danger to be anticipated in the use of such defective machinery. There was no evidence that the handcar was run too fast. The court properly refused to give an instruction directing a verdict for appellant. The case was one for the jury upon proper instructions, and there is nothing in the ruling of the court in giving or refusing instructions of which appellant can complain. We need riot again discuss the doctrines of assumed risks and contributory negligence presented by some of the charges, for the whole subject has been gone over exhaustively by us in the recent case of C., O. & G. R. Co. v. Jones, 77 Ark. 367. Nothing remains except to apply these principles to the facts of each case as they arise where these questions are involved. In addition to the authorities cited by Judge Riddick, I wish to refer, for the benefit of those who may be interested in investigating these subjects further, to the case of Limberg v. Glenwood Lumber Co., 49 L. R. A. 33, and the elaborate notes thereto. 3. The twelfth ground of the motion for new trial is: The court erred in refusing to exclude from the consideration of the jury the evidence of Sam Thompson, R. J. McKay and R. L. Orear as to placing or replacing wheels on the handcar after the time of the accident. Over the objection of appellant, witness McKay was permitted to testify that the rear wheels of the handcar were taken off some time after the accident, but he could not tell how long, whether three weeks or a month. Witness Thompson was asked to state to the jury how came the change to be made, and over objection of appellant answered: “I suppose it to be for safety.” He was then asked: “The other wheels were not considered safe by the men who ordered them off?” and over objection was allowed to answer, “No.” Exceptions were properly saved. Motion was made to strike out this testimony, and the bill of exceptions shows that “the court overruled the motion to strike out the testimony of Orear and Thompson in reference to change of the wheels made' on the handcar, and permitted the testimony to go to the jury, but not for the purpose of establishing conclusively that the change was made on account of defects, but it might be considered by the jury, together with all other circumstances.” Such testimony was incompetent, as was recently ruled by this court in Prescott & Northern Ry. Co. v. Smith, 70 Ark. 179. It was prejudicial, for it can not be said that the evidence, apart from this, conclusively established the negligence of appellant. The question was for the jury. The evidence was conflicting as to whether or not there were defects in the handcar which appellant knew or by the exercise of ordinary care should have known. For the error in admitting this testimony and refusing on motion afterwards to exclude it, .the judgment is reversed, and cause remanded for new trial.