Bemis v. Central Vermont R. R.

The opinion of the court was delivered by Yeazey, J. One of the issues was that of contributory negligence ; and this was based on the claim that three men at least were required in the operation of the hoisting apparatus, especially in raising and moving a stone of the size named in the exceptions, and on the fact that but two men were using the apparatus at the time of the accident, the defendant claiming that such was not a prudent use. One Brooks was improved as a witness by the defendant, to show about the operation and capacity of the machine, and the number of men required to use it, and why so many were inquired and what each had to do. And after showing all this a question was asked as follows : “ What do you say about its being prudent to use it with less than three men, on a stone of two tons’ heft?” Answer. “I should not consider it prudent with a stone of two tons and upwards.” Another witness, Lyman, was improved and used for the same purpose, and a like question in substance was asked him, and he made similar answer. It is difficult to see how questions could be framed to call from the witness an opinion upon the point to be decided by the jury more exactly than was done in these questions. When this machine was fully described as to its structure, strength, method of use, number of men required, danger in its use by less number, its safety and adequacy when properly used, the inference as to the prudence of undertaking to operate it on a stone of the size in question with [640] only two men, was one which required no particular knowledge and skill, but rested in the sound judgment of the jurors, and one which they could as well decide for themselves. Speaking of the exceptions to the general rule that witnesses are to testify to facts, and not to give their individual opinions, Royce, J., in Clifford v. Richardson, 18 Vt. 626, says: “When all the pertinent facts can be sufficiently detailed and described, and when the triers are supposed to be able to form correct conclusions without the aid of opinion, or judgment from others, no exception to the rule is allowed.” We think the opinion drawn out as above shown was clearly inadmissible. Laws. Ex. Ev., Rules 24 and 33. It is said this evidence was only the same in substance as could have been called out in another form. That .is true, and it might be added that the same in effect had been shown already by the same and other witnesses. But that does not meet the objection. A settled rule was violated as when a leading question is asked without permission, or when secondary evidence is admitted when the best is at hand, all under objection. The plaintiff further claims that there was no occasion or legal ground for expert or opinion testimony. In 1 Stark Ev. 153, the author says: “ In general wherever the inference is one of skill and judgment, the opinion of experienced persons is admissible; for by such means only can the jury be enabled to form a correct conclusion.” In Lester v. Pittsford, 7 Vt. 161, Phelps, J., says: “The testimony of opinion may be given, where, from the general and indefinite nature of the inquiry, it is not susceptible of direct proof.” One position of the plaintiff was that this machine was of insufficient capacity for lifting and loading the soapstone for which it was erected. It was unusual and unfamiliar as a hoisting power, both in size and kind. It was adapted and used for much heavier work than men ordinarily have occasion-or are accustomed to engage in; and it was pecul [641] iar and not common in form of structure and had a limited use. It was not like the ordinary derrick used in heavy stone lifting, having rope or cable guys in all directions from the top of the mast. It had but two guys, and these were wood. It was plain to see how to use it, but to judge of its strength and capacity would require experience in its use, and mechanical familiarity with the strength of such machinery, and with the strain upon its different parts when used to its capacity. Such experience and familiarity constitute “ peculiar knowledge ” and give a man “ special skill.” Practical experience in the observation and use of an unusual and peculiar machine tends to give a man skill in respect to it. We think the plaintiff tendered an issue upon which expert testimony was admissible. Blodgett Paper Co. v. Farmer, 41 N. H. 398. Another claim is made that the witnesses who gave expert evidence were not properly experts; that is, had not the qualifications required in order to be experts. This is a question of fact, the decision of which by the trial court as an inference from evidence is not revisable. Wright v. Williams, 47 Vt. 222; Dole v. Johnson, 50 N. H. 452. An arbitrary ruling without evidence or against conclusive showing would leave the question of revisability the same as it would stand on similar rulings on other questions of fact. As to what are the qualifications necessary to entitle a witness to testify as an expert, and as to whether the subject concerning which he is to testify is one upon which the opinion of an expert can be received, these have been held to involve questions of law. Jones v. Tucker, 41 N. H. 546, We think there was no error on this branch of the case; but on the point first noted the judgment is reversed and cause remanded.