Louisville, Evansville & St. Louis Consolidated Railroad v. Berry

Lotz, J. This case is before this court for the second time. Louisville, etc., R. R. Co. v. Berry, 2 Ind. App. 427. 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?” [65] 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, [66] 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 was laboring under great excitement. Three witnesses for appellant testified that when he reached the chair he was asked how the accident happened, and that he answered substantially as follows: “I am a dead man, but nobody is to blame but myself. I turned the plug the wrong way and it came out.” On the first trial of the cause, the court struck this testimony out and withdrew it from the jury. This court held, in the former opinion, that this declaration of the deceased was proper evidence, not as an admission binding upon the plaintiff, but as a part of the res gestee. In the former opinion, this language was used: “In the case at bar the injury sued for was originally and primarily inflicted upon the appellee, and no part of the damages described in the complaint, and awarded by the jury, could have been recovered by the deceased had he survived the injury. Mayhew v. Burns, 103 Ind. 328. His services, during his minority, belonged to the appellee, as his lawful right, and it was not within the power of the deceased son to have legally defeated this right. Consequently, upon the clearest principles of law, the admissions of the deceased could not bind the appellee. As bearing somewhat upon this question, see Penn. [67] etc., Life Ins. Co. v. Wiler, 100 Ind. 92; Lawson’s Rights and Remedies, section 1108.” Appellant assails the correctness of the statem ent above quoted, in so far as it states “that the admissions of the deceased could not bind the appellee,” and insists that the authorities cited do not sustain it. The assault is not well founded. The word admission is here used in the sense of a declaration against interest. As in the nature of things it was not possible for the deceased to have any interest in the subject-matter of this controversy, his declaration could not admit away a right he did not possess. His declaration, however, may be considered for another purpose, as was held in the former opinion. It may be conceded that the appellee is not entitled to recover in this action unless he proves not only that the appellant was guilty of negligence, but, also, that the deceased was free from contributory negligence. It is claimed that the testimony of these three witnesses, on the point that the deceased made the declaration, is uncontradicted, and that, therefore, the facts contained in the declaration are undisputed facts; that such facts conclusively show the deceased to have been guilty of contributory fault; and that the verdict should have been for the appellant. We are asked to reverse the case on the evidence. When the facts are undisputed, and only one legitimate inference arises therefrom, then negligence or no negligence may be ruled as a matter of law. If the declaration was all the evidence given in the case bearing upon the question of contributory fault, then appellant’s position would be correct; but there was other evidence given which tended to show that the deceased was free from fault. [68] Filed Nov. 23, 1893. There was a conflict in the evidence, and this court can not disturb the verdict under such circumstances. Judgment affirmed, at the costs of appellant.