Meyers v. Highland Boy Gold Mining Co.

BARTCH, J. This action was brought to recover damages for personal injuries, which the plaintiff claims-he received because of the negligence of the defendant. In the complaint, so far as material to this decision, it is alleged that on January 28, 1902, the plaintiff was in the employ of the defendant company at. its smelting works, and while so in its employ was ordered by defendant to assist in passing crushed ore from a certain ore bin, through chutes, into an ore car; that previously the plaintiff had been employed as a helper in the roasting department, but had not until that day assisted in passing ore through the bins; that it was necessary for him, in performing such work, to stand or -sit on a narrow plank or platform, about six inches wide, extending around the top of the bin; that' same was not a reasonably safe place, or sufficient for him to perform the work; that defendant had negligently permitted crushed ore to collect and remain upon the platform, thereby increasing the unsafeness thereof, and had negligently failed to provide any other place for plaintiff to stand or sit; that the place and premises were insufficiently and improperly lighted; that by reason of the neglect of defendant to provide a safe place for plaintiff to perform the work, and to sufficiently and properly light said place and premises, plaintiff fell from the platform into the bin; that, after falling into the bin, — 98 — his right limb extended about five inches below the lower end of the chnte, and he was nnable to move or extricate himself; that defendant discovered his helpless condition, and it became its duty to use every precaution and all possible means to extricate him without injury, but that it negligently and carelessly moved the ore car, which was then immediately beneath the bin, against plaintiff’s right leg, which was broken in consequence, and plaintiff otherwise injured; that the injuries so received are permanent and lasting; and that plaintiff will be unable to do any physical labor during his life. The answer denies these allegations of the complaint, and affirmatively pleads contributory negligence on the part of the plaintiff and an assumption of risk. From the evidence it appears that the plaintiff was employed by the defendant to work in the roasting department of its smelter, about the middle of October, 1901, and continued in the employment until the date of the accident, January 28,1902; that generally he was employed in a building separate from that in which the accident occurred; that on the day of the injury, and on one previous occasion, he was, by order of the foreman, working in the crusher building, assisting in passing ore through a certain ore bin, known as “bin No. 4,” into a car standing on the track underneath the ore chute; that the bin, which was in the second story of the building, was about eight and one-half feet wide, eleven and one-half feet long, and twelve feet deep; that the timber around the top of the bin is twelve inches square, and one piece of the same size extends across the top of the bin east and west; that across the top of the bin there extends north and south also a tramway track, from two to three feet wide;.that this arrangement of the timber and track leaves the openings into the bin about three and one-half by three and two-thirds feet in the clear; that the timber and the track were the only place upon which the plaintiff could stand or sit in the performance of his work; that there are a number of — 99 — bins in the same room, the room being lighted with electricity, and bin No. 3 being next to No. 4; that the ore, after being crushed, was dropped from above, first into bin No. 3, and, when that was full to above the top, the ore would run thence over into bin No. 4; that the ore collected on the timbers, and, in cold weather, would freeze on the'timbers and in the bins, forming a crust over the surface thereof; that when the ore was so frozen it was necessary to push it with an iron rod to keep, it moving through the chute into the car; that at the time of the accident the plaintiff was sitting upon one of the timbers of bin No. 4, and was pushing into the ore below him with an iron rod' to keep the ore moving ; that, while so engaged, he lost, his balance, fell into the bin, and was immediately covered up with ore; that upon falling into the bin his right leg extended from the chute into the ore from a point about the knee; and that the foreman and another employee discovered him in this condition, and fearing that the ore would smother him, and believing themselves unable to extricate him in time to save his life with the car where it was, ran the car north, so as to clear the chute, and thereby broke the plaintiff’s leg and caused the injuries of which he complains. At the trial a verdict was returned, and judgment entered thereon, in favor of the plaintiff. The record contains numerous'assignments of error, but they present only a few questions necessary to be determined upon this appeal. The appellant, in the first instance, insists that the court erred in the admission in evidence of the opinions 1 of witnesses respecting the sufficiency of light and the necessity of additional light at the ore bin in question when the accident occurred. The witness Wright, called by the plaintiff, in his examination in chief, and. after having testified respecting the location and character of the lights in the vicinity of the bin where the injured man had been at work, was asked a question, as follows: “Would that be sufficient light — 100 — for the bin to enable one punching ore down to see anything about what was in the bottom of the bin?” This question was objected to as being one for the jury to determine, and not for the witness. The objection was overruled, and the witness answered:- “It would not.” Thereafter, upon cross-examination, the witness Crellin, who in his direct testimony had described the location and character of the different lights with reference to the ore bin, and had stated as a fact that there was a light over bin No. 4, which fact was disputed by witnesses for the plaintiff, was asked: “Do you say a light over bin No. 4 was necessary for the safety of the men or a man working by it?” This was objected to as calling for a conclusion, and as being one of the questions which the jury was called upon to determine. The objection was overruled, and the witness answered: “It would not be perfectly necessary, but it would be more safe to have two lights there than it would be to have one.” It is clear that the objections to this testimony ought to have been sustained. Both questions were improper, under the circumstances, and the answers thereto inadmissible, under the familiar rules of evidence. As may be observed, one of the principal grounds of negligence alleged in the complaint is that the “place of work” and premises were “insufficiently and improperly lighted,” and that, by reason of the neglect of the defendant “to sufficiently and properly light said place and premises,” the plaintiff “fell from the platform into said bin” and was injured. This was denied by the answer, and by such denial the sufficiency of light to render the place safe became* an issue in the case, to be determined by the jury from the facts and not from opinions of witnesses; the subject of inquiry being one not requiring such opinions to enable the jury to comprehend the real situation and draw correct conclusions. Where, as here, the subject-matter concerning which inquiry is being made is within the comprehension of persons of ordinary intelligence, witnesses must state the — 101 — facts, and the jnry must draw its deductions from those facts. When the condition of a thing is snch that language is inadequate to so describe it as to enable the jury to obtain a correct conception, or a proper realization and comprehension of it, witnesses may state their opinions in relation to it, or describe it by its effects upon their minds; but, if their opinions are founded upon facts which can be weighed and comprehended, by the jurors, as well as by the witnesses, those facts, and not opinions based thereon, should be laid before the jury. To permit a witness, under the pleadings in this case, to state that the lights were insufficient, or that an additional- light was necessary to render the place safe, would be an invasion of the province of the jury. In answering the questions ashed, the witnesses necessarily decided a material issue, which the jury could readily have determined from the facts laid before them, and from facts which could have been laid before them. The cases where opinions of witnesses are received in evidence are exceptions to the general and elementary rule that witnesses must state facts, and not give their opinions. ‘‘The law does not look with favor upon the introduction of opinions in evidence. As a rule witnesses are expected to testify to facts, and it is for the court or jury to draw conclusions and form opinions from the facts thus brought before them. Even when opinions are admitted, the ostensible purpose is to inform the jurors concerning some fact, and evidence which is sometimes received from necessity has been said to be less an opinion than a conclusion of fact.” 12 Am. and Eng. Enc. Law (2 Ed.), 421. In Smead v. L. S. & M. S. Ry. Co., 58 Mich. 200, 24 N. W. 761, where it was held error to permit a witness to give his opinion as to whether or not a certain “cattle guard was sufficient to prevent animals from getting on the right-of-way under circumstances ordinarily arising at those places,” it was said: “It is quite elementary that a witness can only give his opin — 102 — ion in exceptional cases, and then only when his knowledge is snch as to qualify him to some, extent as an expert. I think the rule is best stated in Best on Evidence, where he says: ‘This rule is necessary to prevent the other rules of evidence being practically nullified. If' the opinions thus offered are founded on no -evidence, or on illegal evidence, they ought not to he listened to; if founded on legal evidence, that evidence .ought to-be laid before the jury.’ ” In Brunker v. Cummins, 133 Ind. 443, 32 N. E. 732, a witness was asked to state “whether there was sufficient room, between where that barrel was and the wall, for a man to walk with safety. ’ ’ The Supreme Court, holding the question improper, because calling for an expression of opinion as to negligence of the parties, said: “Even in eases where necessity justifies the expression-of an opinion, the opinion cannot go to the principal points which the law requires the jury to decide. ’ ’ So, in Combs v. Ditch Co., 17 Colo. 146, 28 Pac. 966, 31 Am. St. 275, it was held error to overrule an objection to a question, as follows: “Prom your experience as a farmer, and in irrigation in connection with it, is there water enough in that ditch now, or has there been for the last two years, to irrigate the lands which have heretofore been irrigated by that ditch?” The court said: ‘ ‘ The question was not merely introductory. It embraced the very substance of the issue which the court was then trying; and a categorical answer, such as the question called for, would, if accepted by the court, have been a complete determination of the issue. It is an elementary rule that such questions are inad-xmssibl g * ^ In Hamilton v. Mining Co., 108 Mo. 364, 18 S. W. 977, where the plaintiff was injured by a coal car running over his leg, the railroad being a spur owned and operated by the defendant to its mine, the court held that the defendant could not, on cross-examination of a witness, ask him whether it was negligence for a per — 103 — son who had business to attend to on a railroad to be standing on the rails immediately in front of a moving car, since it was for the jury to say whether such facts constituted negligence. In Black v. Telephone Company, 26 Utah 451, 456, 73 Pac. 514, a question was propounded to a witness, as follows: “Now, as a practical man, experienced for years in this work, as you say you have been, what would you say would be the proper thing for a man under these conditions to do — attach himself, or not?” In upholding the action of the lower court, sustaining-an objection that this question called for an opinion of the witness upon the merits, this court, speaking through Mr. Chief Justice BASKIN, said: “As the question objected to called for the opinion of the witness, based upon conditions [what these conditions were was not disclosed by the question] on a matter which it was the exclusive province of the jury to decide, the objection was properly sustained.” Likewise, in Stoll v. Daly Min. Co., 19 Utah 271, 284, 285, 57 Pac. 295, this court held that it was error to permit witnesses to state their opinions upon the question of the competency or carelessness of an engineer. McCABTY, District Judge, delivering the opinion of the court, said: “The alleged incompetency and carelessness of Adamson being issues in the case, they were questions for the jury to determine. It was error to permit the witnesses, over appellant’s objections, to state their conclusions and give their opinions on these issues. ‘The opinion of witnesses on the substance of an issue should never be resorted to, except when the subject is beyond the knowledge and experience of ordinary men. ’ ” 2 Labatt, Mast. & Servt., section 830; 1 Whart., Ev., section 440; 12 Am. and Eng. Ency. Law (2 Ed.), 422; Mining Co. v. Broderick, 25 Colo. 16, 53 Pac. 169, 71 Am. St. 106; Mellor v. Utica, 48 Wis. 457, 4 N. W. 655; Gutridge v. Railway Co., 7 S. W. (Mo.) 476, 4 Am. St. 392; Bohr v. Neuenschwander, 120 Ind. 450, 22 N. E. 416; Harley v. B. C. M. Co., 142 N. Y. 31, — 104 — 36 N. E. 813; Railroad Co. v. Jackson, 32 N. E. (Ind. App.) 793; Sowers v. Dukes, 8 Minn. 6 (Gil. 6); Railway Co. v. Moranda, 108 Ill. 576; Railway Co. v. English, 59 S. W. (Tex. Civ. App.) 626; Hayes v. Southern Pac. Co., 17 Utah 99, 53 Pac. 1001; Tuttle v. Lawrence, 119 Mass. 276. The appellant also insists that the testimony as to the condition of the No. 4 bin, and as to the. position of a certain plank, and ore thereon several hours after the 2 accident 'was proper, and that the court erred in excluding it. The testimony referred to was to be given by the witness Avery, an employee at the smelter, who had testified that he went on the night shift at 11 o ’clock the night of the accident, the accident having occurred about 9 o’clock, and noticed No. 4 bin as to whether there was a plank thereon. After having so testified, it was sought to show that at that time he observed a plank lying across the bin, and held in place with the ore on the north end of it, in substantially the same position as had been testified to by two other witnesses on the part of the defense; their evidence tending to show that the plank was in the same position and held there in the same way at the time of the accident, and there being no evidence- tending to show a change of conditions in the meantime. The offer was ruled out, and thereafter, a witness having been called, who testified that he knew there was no change made in the conditions there from the time of the accident to 11 o’clock, an effort wus again made to introduce the evidence, but.it was again ruled out upon the same ground —that it was incompetent to show the conditions of the bin three hours after the accident. In view of the fact that the plaintiff’s evidence tended to show that there was no plank there, and that one was necessary to brace himself to keep from overbalancing and falling into the bin, the evidence in dispute was competent, and ought to have been admitted. The lapse of time, under the circumstances, was not so great as to justify the court in excluding the evidence — 105 — offered; it appearing that no one was working at or about the bin during such time, and it not. appearing that there was any change from the conditions existing at the time of the accident. Under the circumstances, there was a presumption, more or less strong, that the conditions, whatever they in fact were, remained the same. It was competent to show that shortly 3 after the accident the same conditions existed. Whether or not the evidence offered was true, and what weight ought to he given it, were matters for the jury and not for the court to determine. In Chicago v. Dalle, 115 Ill. 386, 5 N. E. 578, where it was claimed a defect in a sidewalk was the cause of the injury, it was held that the condition of the sidewalk shortly before and shortly after the accident might be admitted in evidence as tending to prove its condition at the time of the accident. In the opinion it was said: “It is plain that the liability of the city is to be determined by the condition of the sidewalk at the time the injury was received. If the sidewalk was then in a good and safe condition for persons to travel over, the city would not be liable, but if, on the other hand, the sidewalk was then out of repair and dangerous to travel upon, the city might be liable. But in passing upon the relevancy of the evidence it is not required that it should, of itself, absolutely prove a case; but the question is whether it tends to prove the fact or facts for which it is offered. If it does, then the evidence may be competent for the consideration of the jury. Here the question at issue was the condition of the sidewalk when the plaintiff was injured, and the best evidence would be proof of its condition immediately preceding the accident; but at the same time it was competent to prove the condition of the sidewalk a few days before and a few days after the accident, as tending to establish its condition at the time of the accident.” So, in Mackie v. Railroad, 54 Iowa 540, 6 N. W. 723, the court held that evidence of the condition of a defective gate, two or three days after the accident, — 106 — was not improper. It was said: “A witness was permitted, against defendant’s objection, to show the condition of the gate two or three days after the accident. It was not shown that its condition was different as to security from what it was at the time of the accident. Its condition, in the absence of such proof, would be presumed to have remained unchanged. ’’ McCulloch v. Dobson, 133 N. Y. 114, 30 N. E. 641; Laplante v. Cotton Mills, 165 Mass. 487, 43 N. E. 294; Railroad Co. v. Eubanks, 3 S. W. (Ark.) 808; Nisbet v. Town of Garner, 1 L. R. A. (Iowa) 152, 9 Am. St. 486, 39 N. W. 516; Erickson v. Barber, 83 Iowa 367, 49 N. W. 838. We do not regard it important to decide the other questions presented on this appeal, since upon another trial they may not again arise. The judgment must be reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial. It is so ordered. BASKIN, C. J., concurs.