American Bauxite Co. v. Dunn

Hart, J., (after stating the facts). The plaintiff boarded with Mr. Lorah at the time he was injured and had boarded there about two months prior thereto. The defendant offered to prove by Mr. Lorah and his wife that they saw the defendant at the breakfast table on the morning he was injured and that he was very drunk; and that he left the house about 8 or 9 o ’clock and was. very drunk then. The court specifically instructed the jury that the statements of Mr. and Mrs. Lorah as to their opinion as to whether or not the plaintiff was drunk were withdrawn from their consideration and that they could not consider such testimony under any circumstances in determining the issues in the case; (1-2) This action on the part of the court was error. If the opinion of the witnesses had been asked as to facts not within their observation-an objection to their testimony would have been good and the ruling of the court excluding it would have been correct. But the witnesses .saw the plaintiff at the breakfast table and observed his conduct. They were testifying about a fact which they had observed. "Whether a person is drunk or sober, or to what extent he is affected by intoxication is frequently better determined by the direct answers of those who have seen and know the person than by their description of Ms conduct. Whether a person is drunk is a question which a person not an expert is competent to answer as this is something which may fairly be considered as something of common knowledge. It is generally held that a witness may state whether a certain person is intoxicated or had that appearance at a given time. The witness, in effect, describes the facts, when he gives his opinion as to the intoxication of a person whom he knows and has observed at a particular time. A witness may not be able to detail everything he has observed about a man which caused him to believe him to be drunk and yet may characterize the acts of a person whom he knows and observes such as to lead him to the opiMon that he was or was not drunk at a particMar time. Commonwealth v. Eyler, 217 Pa. St. 512, 10 Am. & Eng. Ann. Cas. 786, and extensive case note. The same case is also reported in 11 L. R. A. (N. S.) 639, and many eases are cited in support of it. When a witness who knows and observes a particular person at a given time and states that in his opiMon he was drunk, it is naturally understood that he had an opportunity to observe the facts upon which he bases Ms opinion. On this occasion Mr. Lorah and his wife were 'both in the dining room when the plaintiff ate his breakfast and observed his conduct while there. They were well acquainted with him, saw Mm leave the house, and observed his conduct at that time. Under these circumstances, the court erred in excluding from the jury their opinion as to whether or not he was drunk. The excluded testimony was competent and material to the issues involved. (3) Though it is well settled that the mere fact that a person was intoxicated at the time he was injured does not of itself show such contributory negligence as will defeat his recovery for such injury, it is a circumstance to be considered in determiMng whether or not his intoxication contributed to Ms injury. K. C. S. Ry. Co. v. Davis, 83 Ark. 217; McIntosh v. Standard Oil Co. (Kan.), 34 Am. & Eng. Ann. Cas. 112, and case note. (4) The testimony was material for another reason. It is the contention of the defendant in this case that the plaintiff was not injured by the firing of a blast at its mine, but that he was drunk and fell off of an embankment into a deep cut on the railroad track, and in this way received his injuries. The excluded testimony was competent as tending to prove the contention of defendant in this respect. (5) It might also be stated that the court erred in directing the jury, as a matter .of law, that the failure of the defendant to give a warning that a blast was about to be fired constituted negligence on its part. The question of the liability of the defendant under the facts and circumstances in the case depends upon the finding of negligence as a fact by the jury. It is not claimed that the blasting was unlawful, and the question of whether or not a failure to give warning that a blast was about to be fired was negligence under the facts in the case, was for the jury. The evidence on the part of the defendant shows that the blasts were fired before the men came to work in the morning, at noon, or in the evening after they quit work; and that these blasts were always fired in the daytime because it was dangerous: to work with dynamite by artificial light; and that warning was given to .servants who worked in the immediate vicinity. So it will be seen that, according to the defendant’s testimony the hour, selected for blasting was one where it was not reasonable to anticipate that other servants of the company would be in the vicinity. The plaintiff did not work at the place where the blasting was. done and only passed there in going to and from his work. Therefore, it can not be .said, as a matter of law, that the defendant should have reasonably expected him to be within range of the explosion. On the other hand, the blasting itself being lawful, it was a question of fact for the jury to determine whether or not, under the circumstances, warning should have been given before the blast was fired. Driscoll v. Newark & Rosendale Lime & Cement Co., 97 Am. Dec. 761. (6)' In view of another trial, we call attention to the fact that the instruction given ¡by the court on expert testimony was argumentative and should not have been given. We do not mean to say that we would reverse the case on account of that instruction being 'given but, inasmuch as the case is reversed for the errors mentioned above, we deem it proper to call the attention of the -court to the verbiage of this instruction. The language is involved and argumentative. In the case of Arkansas Southwestern Rd. Co. v. Wingfield, 94 Ark. 75, the court held that it was for the jury to determine what weight the opinion of an expert is entitled to under the circumstances of a given case. Experts are allowed to give testimony by way of opinion because they are presumed to have acquired more skill and knowledge and are more capable of forming a correct opinion as to the subject-matter of the question under discussion, and their opinions are admitted in evidence for the purpose of aiding the jury to understand questions which inexperienced persons are not likely to ¡decide correctly without such assistance. But the testimony of experts may receive only such consideration by the jury as the testimony may appear to the jury to deserve. For the error in excluding the testimony as indicated in the opinion, the judgment will be reversed and the cause remanded for a new trial.