Shaw v. National Handle Co. ( 1924 )

Clarkson, J.

The first group of exceptions and assignments of error by defendants are to the court below permitting Dr. Garriss, plaintiff’s witness, to answer the following questions:

“Q. What effect, so far as increasing or decreasing the saturation of the air, would the turning of the discharge from the combustion into the apartment itself have? A. When carbon monoxide is eliminated; regardless of by gasoline engine or gas plant, if eliminated into a closed room, if the saturation is as much as three per cent, it will kill inside of ten or fifteen minutes.

“Q. From your examination of the boat, the condition in which you found them, and your observation of the condition when you came upon them, the condition of the boat as you observed it, and the other surrounding conditions, if you have an opinion satisfactory to yourself as to the cause of the death of the deceased^ I will be glad if you will give it to us. A. In that case it was my opinion — of course, my investigation was at the time only far enough to decide whether it was homicide. I didn’t conduct the investigation far enough to decide that, but I believe it came nearer being gas poisoning, monoxide poisoning, than anything else. The only other thing that could have caused death was the empty bottle. The size of the bottle, and not but one bottle, it could not have contained enough liquor, or whiskey, if whiskey, to have produced death; and also if it had been liquor or other poison, there would have been other signs present, as one person dying or taken sick before the other, the other trying to assist hiin. There were no other signs.”

From the testimony, not denied, Dr. Garriss was a duly licensed and practicing physician of many years standing, and a graduate of a leading medical college. "Whether or not a witness is an expert is a question for the court below to decide, and if there is any evidence that a witness is an expert, the decision of the court below will not be reviewed on appeal.

Defendants in their brief say: “There is no finding in the record that Dr. Garriss is an expert, but no point is made as to this.”

Dr. Garriss saw the boat, the condition of the two men, how they were lying, the windows down, and, by personal observation, had knowledge of the entire situation. With this personal knowledge and observation of all the facts, and Dr. Garriss’ training and experience as a physi'cian, we think his evidence competent. Its probative force was for the jury.

In Flaherty v. Scranton Gas and Water Co., 30 Pa. Superior Court Rep., 446, it was said: “Two reputable physicians of long practice and high standing, each of whom saw and carefully examined the child, one at the beginning, the other near the fatal termination of its sickness, and each of whom was apprised of the conditions under which the sickness began, gave it as their deliberate opinion and judgment that the child died from the effects of an inhalation of gas. . . . That was an action against a gas company to recover damages for the death of an infant. It appeared that the employees of the defendant went into plaintiff’s cellar to make some repairs in the gas service, and while so engaged permitted the escape of a volume of gas, which found its way into an upper room, where the infant inhaled it.”

In that case, nor in the case at bar, was there an autopsy. The examination in each case was external and all the surrounding facts known to the physicians. They knew the facts, and on the known facts gave their opinion. Their education and training were for the purpose of enabling them to deal with and express their opinion as to what ills and the causes that constantly threaten and affect humanity.

In Davenport v. R. R., 148 N. C., p. 294, Hoke, J., says: “Even if it should be regarded as more strictly ‘opinion evidence,’ when it comes from a source of this kind, from one who has had personal observation of the facts, and from practical training and experience is qualified to give an opinion which is likely to aid the jury to a correct conclusion, such evidence is coming to be more and more received in trials before the jury. McKelvey speaks of it with approval as ‘expert testimony on the facts.’ McKelvey, p. 230.” State v. Morgan, 95 N. C., 641; Jones v. Warehouse Co., 137 N. C., 337; Jones v. Warehouse Co., 138 N. C., 546; Lynch v. Mfg. Co., 167 N. C., 98; Ferebee v. R. R., 167 N. C., 290.

A recent interesting discussion of opinion evidence, by Stacy, J., is in S. v. Hightower, 187 N. C., p. 307. Tbe entire Court concurred in this aspect of tbe case. It was there said: “Applying these principles to the instant ease, we think the better practice would have been for Latham and Coursey to have stated the facts or to have detailed the data observed or discovered by them, before drawing their conclusions or giving their opinions in evidence, but we shall not hold it for- legal or reversible error that such was not required as a condition precedent to the admission of their opinions in evidence before the jury. S. v. Felter, 25 Ia., 75; S. v. Foote, 58 S. C., 218. Speaking to a similar question, in Commission v. Johnson, 188 Mass., p. 385, Bradley, J., said: ‘By this form of examination no injustice is done; for whatever reasons, even to the smallest details, that an expert may have for his opinion can be brought out fully by cross-examination.’ ”

The evidence in Summerlin v. R. R., 133 N. C., p. 551, was excluded in the lower court, and sustained, “upon the ground that the witness was called upon to state a fact of which he had no personal or competent knowledge, and not merely the opinion of an expert. The opinion of the witness should be based upon facts admitted or found, or upon his personal knowledge, and not upon the assumption' of the fact. The question should therefore be hypothetical, or rather supposititious, in form, following the precedents as settled by our decisions.” Mule Co. v. R. R., 160 N. C., 252; Hill v. R. R., 186 N. C., p. 475.

It is well settled that “The testimony of an expert is not admissible upon matters of judgment within the knowledge and experience of ordinary jurymen.” Greenleaf Evidence, sec. 440a; DeBerry v. R. R., 100 N. C., 315.

These assignments of error cannot be sustained.

The second group of exceptions and assignments of error by defendants are to the court below permitting Mack Gregory, plaintiff’s witness, to answer the following questions:

“Q. I am asking you, Mr. Gregory, in your examination of that gas engine — tell us, please, what condition you observed about that engine. A. We found that the valves and valve-guides are badly worn, and we found the exhaust pipe between the engine and muffler — there is a flange union or connection where the two pipes are made together with the joints which had been discolored from exhaust blowing. That was inside the boat. We found marks on this, something like a tightening operation, if you would hammer it.” (And like questions, all set forth in the material facts in the case.)

Tbe witness Gregory testified, in effect, tbat be made an examination of this boat, on or about 19 March, 1924, in tbe presence of Mr. Leary, tbe plaintiff’s attorney, tbe plaintiff bimself, Elmer Jackson, wbo owned tbe boat, and others; tbat at this time be found both tbe two intake valves and tbe two exhaust valves much worn, and also found tbe exhaust pipe in a defective condition; and tbat by reason of tbe worn and defective condition of tbe exhaust valves and exhaust pipe, tbe boat, when in operation, would probably give off into tbe cabin fumes or exploded gas. He further testified tbat it would have been impossible for such fumes to enter tbe cabin from tbe intake valves, in -any event, or from tbe exhaust valves or exhaust pipe, if they bad been in proper condition, and tbat even in tbe worn and defective condition in which tbe exhaust valves and pipe were found, fumes could have been prevented from entering tbe cabin from these sources by tbe presence of a plate which be testified was absent. Tbat is to say, according to this witness’ testimony, tbat tbe danger from escaping gas arose solely from tbe worn and defective condition of tbe exhaust pipe and exhaust valves, and tbat bad these been in reasonably safe condition all danger from such gas poisoning would have been eliminated.

This testimony was to tbe condition of tbe boat about fifteen months after tbe inquest of Dr. Garriss over tbe body of plaintiff’s intestate. It is conceded tbat this testimony would have been competent if directed to tbe time of tbe deceased’s death.

Tbe defendants contend tbat tbe conditions were tbe same at these two widely separated periods is not to be assumed. Tbe witness Gregory frankly states tbat be has no knowledge and cannot say what tbe condition of tbe exhaust pipe and valves were at tbe time of- deceased’s death; nor is there other testimony in tbe record tending to show a similarity of conditions in these appliances. On tbe other band, testimony of Elmer Jackson, owner of tbe boat and witness for plaintiff, makes it clear tbat conditions were utterly dissimilar at these two periods. He testified tbat, since tbe accident and before Gregory’s examination of tbe boat, be bad reseated tbe intake valves — a matter of no importance, since Gregory testified tbat gas fumes could in no event have entered tbe cabin from tbe intake valves; also, tbat within tbe same limits of time be bad wholly replaced tbe exhaust valves; and also tbat within tbe same period — about three weeks before Gregory’s examination — the exhaust pipe bad broken off and bad been repaired or replaced. It thus conclusively appears tbat, with reference to tbe exhaust valves and exhaust pipe, from which alone Gregory testifies danger was to be apprehended, conditions bad materially changed between tbe time of tbe accident and Gregory’s examination, and tbat no inference as to their condition at the time of deceased’s death can be drawn from Gregory’s testimony.

The plaintiff contends, on the other hand, the questions to which these exceptions were taken were all asked of plaintiff’s witness, Mack Gregory, an experienced mechanic, who had made personal inspection of the gas boat in question. The court declined to permit the introduction of any of this testimony until after it had been made to appear from examination of the witness Elmer Jackson, owner of the boat, that the condition of the boat at the time of Gregory’s examination was the same as at the time of the accident, with the few exceptions noted by the witness Jackson. After stating that he had owned the boat ever since the unfortunate accident under consideration, he said: “It was the same engine. I have replaced the valves about a dozen times. I have replaced the two exhaust valves since the accident, and the two intake valves I have had reseated. I remember no other changes since December, 1922, except that I have repaired the pipes. I have replaced the exhaust valves, had the intake valves reseated, and replaced the exhaust pipe; have made no other changes, that I recall, except possibly some minor changes, such as tightening a bolt.”

With this evidence before the Court, we think the testimony of the witness Mack Gregory competent, even though the information was gathered some time after the accident complained of, and the following charge of the court below was correct: “There is one matter to which I should call your attention. Some evidence has been offered as to changes and repairs on the gasoline engine of the boat. This is submitted to you solely for the purpose of aiding you in ascertaining the condition of the engine in December, 1922, and must not be considered by you as in anywise tending to show the engine was defective by reason of any evidence that any additions or repairs were made .to it after the death of the intestate. You will observe this caution in the consideration of evidence along this line.”

In Blevins v. Cotton Mills, 150 N. C., p. 497, it was said: “On the admission of testimony as to the condition of the machine not long before the trial of the cause, and twenty-two months after the occurrence, the authorities are very generally to the effect that when the condition of an object at a given time is the fact in issue, its condition at a subsequent period may be received in evidence when the circumstances, are such as to render it probable that no change has occurred. There are decisions which hold that after a long period the subsequent conditions should be rejected as a circumstance too remote (R. R. v. Eubanks, 48 Ark., 460), but this qualification of the principle does not obtain when there is direct evidence, as in this case, that no change in the meantime has occurred. Wigmore on Evidence, sec. 437; Thompson’s Commentary on Negligence, sec. 7870. It may be well to note’ that the doctrine we are now discussing refers to the objective conditions, where, from the facts and circumstances, it is reasonably probable that no change has occurred, and must not be confused with the position which obtains with us, that voluntary changes made by an employer after an injury to an employee, and imputed to the employer’s negligence, are not, as a rule, revelant on the trial of an issue between them. Myers v. Lumber Co., 129 N. C., 252. This position involves facts and considerations of a different character, and in this State, as stated, has been subjected to a different’ ruling.” Tise v. Thomasville, 151 N. C., p. 281; Boggs v. Mining Co., 162 N. C., p. 394; Person v. Clay Co., 162 N. C., p. 224; Morton v. Water Co., 168 N. C., p. 587; Balcum v. Johnson, 177 N. C., p. 213.

These exceptions cannot be sustained.

The third grouping of exceptions and assignments of error by defendant are “to the refusal of the court to allow defendants’ motion for judgment as of nonsuit, made at the conclusion of plaintiff’s testimony.”

The main and most serious question in the case is, “Was there any evidence to be submitted to the jury to support plaintiff’s claim?” If there was, it was the duty of the court below to submit the evidence, and the weight of such evidence was for the jury to determine.

In Shell v. Roseman, 155 N. C., p. 94, it was said: “We are not inadvertent to the fact that the plaintiff made a statement, on cross-examination, as to a material matter, apparently in conflict with his evidence when examined in chief, but this affected his credibility only, and did not justify withdrawing his evidence from the jury. Ward v. Mfg. Co., 123 N. C., 252.” Loggins v. Utilities Co., 181 N. C., p. 227.

The inference and conclusion from the evidence could be that Shaw went to look after the raft that he had put in the river to be floated down to Plymouth. He alone went with the negro engineer on Jackson’s boat. For some reason, Cur by did not go. The defendants made all arrangements for him to go. Surely the jury could infer he was about his master’s business and in the scope of his employment and not there for his convenience. The court below left this aspect to the jury, and gave this charge: “Rut if you find that the plaintiff’s intestate went on the boat on which he lost his life, and went on the boat without any arrangements with the defendants for him to do so, and was not at the time in the service of the defendants or in the performance of any duty for the defendants, and was traveling for his own convenience or pleasure, defendants would owe him no duty, except not to do him any wilful or wanton injury, of which there is no evidence in this ease.” We think the charge fully meets the requirements of Gardner v. R. R., 186 N. C., p. 64, and like cases.

The inference and conclusion from the evidence could be that Shaw was asphyxiated. This was a question for the jury, from all the facts and circumstances surrounding the case. While nobody saw the plaintiff’s intestate die, and there was no physical sign of the gas, from the position of Shaw and the colored man, their death in this cabin was under such circumstances that they died as a result of being asphyxiated •by poisonous gas; that the boat was found with its nose in the bank of the river; that it must have remained there for some time. The coroner, Dr. Garriss, and others, went there, opened it up; there was a colored man in the act of (slipping off the seat, showing some instantaneous means had caused his death — not by external violence. Shaw had dropped off the stool on which he was sitting to steer the boat, with his forehead touching the floor and his pipe on the floor. Both of them in this situation lead to the conclusion that they died practically simultaneously; that it would be unreasonable that one had died and the other had not attempted to aid him; therefore, that they died practically at the same time, without any external violence; that they were poisoned by gas; that there is no evidence of anything else, and that the condition of the engine would have generated gas. The physician, Dr. Garriss, the coroner, gave his opinion that, while he could not testify positively about the facts — he was not present — that in his opinion, according to> his belief, from inspection, it was a case of poison by carbon monoxide, a product given off by incomplete combustion of gasoline from a gasoline engine. That the gasoline engine was open, oil cups turned, dry; that the coroner and jury made a careful examination of the cabin; they found only a pop bottle; that it did not have the odor of whiskey or any intoxicating liquor or poison, but had a slight acid odor, and that they could not have taken poison and died in such a sudden manner; that the positions of the dead men bear out the only reasonable hypothesis — that it was due to gas.

In Beal v. Coal Co., 186 N. C., 756, it was said: “It was the duty of the plaintiff to use ordinary care to furnish a reasonably safe place for plaintiff to work. This duty cannot be delegated, and if there is a breach of such duty, which is the proximate cause of injury to the employee, the master is liable(Italics ours.)

The principle is laid down in Gaither v. Clement, 183 N. C., p. 450, as follows: “That the duty of the employer to furnish his employee safe tools with which to perform his services, and a safe place to do so, depends upon the exercise by him of ordinary care in providing them, and an instruction that imposes upon the employer an absolute duty to-furnish them, without qualification, leaving out the ordinary care required of him in. their selection, is reversible error.” Owen v. Lumber Co., 185 N. C., p. 614; Murphy v. Lumber Co., 186 N. C., p. 747.

Labatt, in Ms work on Master and Servant, vol. 3 (2d Ed.), p. 2835, part of section 1073, says: “The broad ground relied upon is simply that, as between a servant and his employer, all appliances which he is authorized or directed to use ought in fairness to be placed upon the same footing as those which actually belong to the employer. In other words, the owner of the appliance, and his servants, are, for the purpose of determining the injured person’s right of action, treated as being constructively the agents of that person’s employer for the performance ■of a nondelegable duty incumbent on the latter. The mere fact that the employer, having no control over the appliance, is unable to remedy defective conditions, is in this point of view manifestly insufficient to absolve him, since he always has in his power to safeguard his servants by refraining from giving them orders which will put them in a position where their safety will be imperiled by those conditions. ... In many, perhaps most, instances there is no real ground for contending that his want of control over an instrumentality constitutes a serious obstacle to his obtaining sufficient knowledge of its condition to enable him to see whether it will unduly endanger his servants or not, and there would therefore be no hardship or injustice in requiring him to make such investigations as may be necessary for that purpose. Even where an adequate examination by his own employees is practically impossible — as where the injury was caused by defects in the track of a railway not belonging to him — it seems not an unreasonable application of the doctrine of nondelegable duties to treat the servants of the owner as his agents. If he desires to protect himself from the consequences of the negligence of persons not in his service or under his supervision, it is easy for him to do so by making specific arrangements with their master for indemnification in the event of his being obliged to pay damages. To relegate the servant to his action against the party who owns the instrumentality must, in many, cases, be productive of serious inconvenience, and will occasionally deprive him of all remedy.” Leak v. R. R., 124 N. C., 457; Deligny v. Furniture Co., 170 N. C., 202.

In Ridge v. R. R., 167 N. C., 522, Walker, J., said: “It was the plain duty of the defendant to have made a reasonable inspection of this car, even though it was a foreign car or one belonging to another road. Any other rule would expose its employees to great hazards. We have held that the failure to properly inspect such a car is negligence, and if damage ensue therefrom, it is culpable or actionable negligence (Leak v. R. R., 124 N. C., 455); and the same principle was recognized and applied in B. & O. R. R. v. Mackey, 157 U. S., 72. The inspection must not only be made, but it must be done with, due care. Leak v. R. R., supra; Sheedy v. C. M. & St. Paul R. R., 55 Minn., 357.” Cotton v. R. R., 149 N. C., p. 231.

On tbis phase of the case the court below charged the jury as follows: “It was the duty of defendants to exercise due care to furnish reasonably safe means and safe place for this purpose. And if you further find from the evidence, the greater weight, that the defendants failed in the performance of this duty and furnished a boat with a gasoline engine which was old, obsolete, worn and defective, so that by reasonable inspection and the exercise of the reasonable care it could have been ascertained that it was likely to cause injury by the emission of poisonous gases to persons using it in weather so cold as to require the windows to be closed, and you find as the proximate result of this failure of this duty poisonous gases, to wit, carbon monoxide, were generated and thrown off, causing the plaintiff’s intestate injury and death, it would be your duty to answer this issue ‘Yes.’ But unless you find these ar.e the facts, if you are not so satisfied, you should answer it ‘No.’ Unless you find by the greater weight of evidence that plaintiff’s intestate’s death was caused by poisonous gases thrown off, plaintiff’s action being based upon the allegation that that was the cause of his death, and unless you find that defendant failed to exercise due care with respect to such engine, it would be your duty to answer the issue ‘No.’ ”

We think the court below charged the law applicable to the facts. The motion for judgment as of nonsuit was properly refused. The evidence was sufficient to be submitted to the jury. They passed on the facts, and we can find

No error.

Adams, J., dissenting.