De Sandro v. Missoula Light & Water Co.

MR. CHIEF JUSTICE BRANTLT delivered the opinion of the court. On the second trial of this cause heretofore ordered by this' court (48 Mont. 226, 136 Pac. 711), the plaintiff had a verdict [336] and judgment. The defendant has appealed from the judgment' and an order denying it a new trial. The opinion delivered on the former appeal contains a statement of the issues involved and of the facts necessary to illustrate the question submitted on these appeals. It appears from that statement that at the first trial the jury returned a verdict against the defendant corporation and in favor of its codefendant Hadalin. The judgment as to the latter was permitted to become final, and thus he was eliminated from the case. As soon as the remittitur from this court was filed in the district court, counsel for the defendant corporation applied for an order removing the cause to the United States court for the district of Montana. After argument the application was denied. Counsel for the defendant has made this ruling the subject of their first assignment of error. We are unable to review the action of the court in denying [1] the petition. We have no doubt that it would have been reviewable on appeal from the judgment as an intermediate order, as was done in Golden v. Northern Pacific Ry. Co., 39 Mont. 435, 18 Ann. Cas. 886, 34 L. R. A. (n. s.) 1154, 104 Pac. 549, if it had been properly brought into the record by bill of exceptions, along with the petition and bond. This was not done. Though a petition, bond and the order are incorporated in the transcript, they are not identified in any way. There is therefore no authenticated record before us to which-we may look with safety to ascertain upon what the action of the court was based. (Latimer v. Nelson, 47 Mont. 545, 133 Pac. 680.) If it be assumed that the order is a part of the judgment-roll, the petition and bond are not. (Rev. Codes, sec. 6806.) The order on its face does not disclose the reason of the court’s action. Whether the petition disclosed a case showing that the federal court had jurisdiction, or whether the bond was sufficient, we are unable to say. Beyond the statement in the order that “defendant’s petition for the removal of this action, etc., is denied,” it does not appear that any petition was filed. But counsel say that the order denying the petition was made in [337] 'their absence, and insist that under the express provision of the statute it was deemed excepted to and became a part of the record without a bill of exceptions. (Rev. Codes, sec. 6784.) There is nothing in the record disclosing whether counsel were present or not. Even so, it was necessary to have the papers upon which the order was based authenticated in some way. This could be done only by bill of exceptions. (Borden v. Lynch, 34 Mont. 503, 87 Pac. 609; Latimer v. Nelson, supra.) The plaintiff’s injury was caused by the caving of a ditch which he was engaged with others in excavating. On the former appeal it was pointed out that the evidence wholly failed to disclose whether the fall of earth by which plaintiff was injured was due to the negligence of the defendant corporation in failing to crib the completed portion of the ditch, or by the act of the plaintiff himself in the construction of that portion of it in which he was at work. It was held that, if the fall had been shown to be due to the failure of the defendant to crib the completed portion, the fall beginning in that portion and extending to the part where the plaintiff was at work thus causing the fall there, a case would have been made fixing liability upon the defendant; but that, inasmuch as the evidence did not show this, but left room for the inference that the cause of the fall was plaintiff’s own carelessness during the course of his work, it failed to show a causal connection between the injury and defendant’s negligence, even though it appeared that the fall extended to the completed portion of the ditch, and hence a case of liability was not made out. The plaintiff was the only eye-witness of [2] the accident, and, since he could not say at what point the fall started, two witnesses were called and permitted to say where, in their opinion, accepting as proven the facts detailed with reference to the observed difference in the character of the soil at the point where plaintiff was working, from that along the completed portion, the fall first began. Counsel for the defendant objected on the grounds that the subject was not one pertaining to an art, science or trade, and that the question put [338] to the witness incorporated a fact not disclosed by the evidence either directly or by fair inference. The theory upon which expert testimony is held competent is that there are persons whose knowledge of a science, art or trade being superior to that of the mass of mankind, qualifies them to express an opinion upon any matter pertaining thereto. That the subject under inquiry here was such as to permit resort to expert evidence we have no doubt. One who has had experience in work such as that called for by the digging of ditches for gas and water pipe and excavating for buildings, from the necessity of the case has been required to note the character and consistency of the different kinds of earth under varying conditions. He must therefore be presumed to have special knowledge of the subject which the mass of mankind does not and cannot possess, whether his work is technically designated as a science, art or trade, or not. This brings the ease within the rule of the statute, and, the witnesses having shown a special knowledge on the subject, it was competent to take their opinion. (Copenhaver v. Northern Pacific Ry. Co., 42 Mont. 453, 113 Pac. 467; State v. Keeland, 39 Mont. 506, 104 Pac. 513.) In putting a hypothetical question to a witness, .counsel has [3] the right to assume' as established, for the time being, all the facts.in evidence tending, directly or by fair inference, to establish his theory of the'.case. (State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169.) He need not embody all the evidence on the subject to which it relates. If opposing counsel does not think the question incorporates all of the facts in evidence he can include them in questions propounded by himself. (State v. Crowe, 39 Mont. 174, 18 Ann. Cas. 643, 102 Pac. 579.) It is then for the jury to say whether the facts assumed by the question are really established and whether the opinion of the witness has any probative value. It is insisted that the question embodied a fact which the evidence does not tend to show, viz., that the earth exposed in the walls of the ditch at the point where the plaintiff was working was different in texture and appearance from that at any other [339] point along the ditch. The only direct evidence introduced by the plaintiff on this point was that of the plaintiff himself and one Grantz. The evidence is not as satisfactory as it might have been, because it is not entirely clear that the observation of these witnesses was sufficient to enable them to describe it as it was. But in our opinion, in the light of all the circumstances in evidence, it presented a ease for the jury. Counsel did not, therefore, transcend the rule by incorporating a favorable inference from it in their hypothetical question. Counsel undertook to supply, by circumstantial evidence and the opinions of the experts referred to, the causal connection between the defendant's fault and the injury. We think they succeeded in making out a prima facie case. The finding of the jury thereon, confirmed by the action of the trial judge on the motion for a new trial, we must accept as conclusive. The judgment and order are affirmed. Affirmed. Mr. Justice Sanner and Mr. Justice Holloway concur.