Ardesco Oil Co. v. Gilson , 1870 Pa. LEXIS 41 ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The first four errors assigned are to the answers to the points and to the charge of the learned judge in the court below in this, that, without any, or sufBcient evidence, he left it to the jury to determine whether the injury which the plaintiff below had sustained from the explosion of two oil stills in the oil refinery establishment of the defendants had resulted from their negligence.

The defendants were a corporation, and could only act through their officers or agents. It is their officer, having charge of their business, who, for all practical purposes, must be regarded as the corporation itself: Frazier v. The Pennsylvania Railroad Co., 2 Wright 104. The same rule of liability must be applied to them as to natural persons. The duty which they owe to their servants and employees is the same. What employers owe to their servants and workmen is the exercise of reasonable care and proper diligence in providing them with safe machinery and suitable tools, and in employing with them fit and competent superintendents and fellow-workmen. Not that they warrant the result, nor that extraordinary vigilance is exacted of them. It is nevertheless true, as stated by the learned judge below, in his charge, that what is due care and ordinary diligence will much depend on the kind of business which is carried on, and the sort of material which is handled. The proprietor of a powder-mill must exert more precaution than the master of a blacksmith shop. So, in such an establishment as that carried on by the defendants below — in refining oil from crude petroleum — a material highly inflammable and explosive, we are bound to examine the question of negligence with a regard to this circumstance.

It may be considered as now settled that, if a person employs others, not as servants, but as mechanics, or contractors in an independent business, and they are of good character, if there was no want of due care in choosing them, he incurs no liability for injuries resulting to others from their negligence or want of skill: Painter v. The Mayor of Pittsburg, 10 Wright 213. If I employ a well known and reputable machinist to construct a steam-engine, and it blows up from bad materials or unskilful work, I am not responsible for any injury which may result, whether to my own servant or to a third person. The rule is different if the machine is made according to my own plan, or if I interfere and give directions as to the manner of its construction. The machinist then becomes my servant, and respondeat superior is the rule: Godley v. Hagerty, 8 Harris 387; Carson v. Godley, 2 Casey 111. There is no difference between liability to a stranger and to a servant for a man’s own negligence or want of skill; though a master is not responsible for an injury to a servant by the negligence of a fellow-servant, unless he has failed in ordinary care in the employment of the culpable party: Ryan v. The Cumberland Valley Railroad Co., 11 Harris 384; Frazier v. The Pennsylvania Railroad Co., 2 Wright 104; Hunt v. The Same, 1 P. F. Smith 475; Caldwell v. Brown, 3 Id.

Applying these principles to this case, we think that the learned judge below was entirely right in submitting the question of negligence to the jury. Graber, the machinist, testified that the stills were made according to the plan of Mr. O’Hara, the president of the company defendants. When, upon trial,, they were found to be defective, he says : “We concluded to put in angle iron to stiffen the tops and sides; so Mr. O’Hara and I thought.” The opinion of the president, assuming to understand the subject, would naturally have great weight with the mechanic. Had he been intrusted with the work under a contract to construct stills of sufficient strength for the purpose, leaving that to his own judgment and skill, the company could not have been visited with the consequences of his failure, but such does not appear to have been the case in this instance; at least there was evidence for the jury.

The fifth assignment is that the court below erred in permitting a witness for the plaintiff to give his opinion that the iron, of which the still was composed, was not of sufficient strength. The ground of the exception is that he was not such an expert as to make his opinion competent. He was a steam fitter at the defendants’ works, and said that he had no knowledge of stills, except working with them and fitting them up, after they were put up. An expert, as the word imports, is one having had experience. No clearly defined rule is to be found in the books as to what constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked. There are some matters of which every man, with ordinary opportunities of observation, is able to form a reliable opinion: Wilkinson v. Moseley, 30 Alab. 562; Dewitt v. Bailey, 17 New York 340. It is not necessary, as it is said in one case, to call a drover or butcher to prove the value of a cow: Ohio Railroad Co. v. Irwin, 27 Illinois 178. Nor is it imperatively required that the business or profession of the witness should be that which would enable him to form an opinion: Van Deusen v. Young, 29 Barb. 9; Smith v. Hill, 22 Id. 656; Price v. Powell, 3 Comstock 322; Fowler v. Middleton, 6 Allen 92. In Phillips v. Gregg, 10 Watts 158, witnesses, who were not lawyers by profession, were received to testify as to what constituted a lawful marriage in the settlements of the Mississippi valley, half a century before. While, undoubtedly, it must appear that the witness has enjoyed some means of special knowledge or experience, no rule can be laid down, in the nature of things, as to the extent of it. It must be for the jury to judge of the weight to which his opinion is entitled. It was held in Howard v. Providence, 6 Rhode Island 514, that the competency of a person to give his opinion under oath as an expert, so that, upon the preliminary examination, he appears to have any pretensions to speak as such, rests very much in the discretion of the judge trying the cause. This is in accordance with our own cases of Leasure v. Hillegas, 4 S. & R. 313, and Flinn v. McGonigle, 9 W. & S. 75, where, upon a similar preliminary question of fact as to the loss of a paper before admitting parol evidence of its contents, it was said that it must be a strong case to induce this court to interfere. It follows that we cannot pronounce the admission of the evidence in this case to have been erroneous.

Judgment affirmed.