Fritz v. Western Union Telegraph Co.

71 P. 209, 25 Utah 263, 1903 Utah LEXIS 70

• Court: Utah Supreme Court
• Decided: January 15, 1903
• Docket: No. 1387
• Status: Published

Opinion

ROLAPP, District Judge,

after stating the facts, delivered the opinion of the court.

Upon the trial of this case a large number of errors were assigned, most of which relate to the admissibility of certain evidence now forming part of the record. It 1 appears that, among other things, one of plaintiff’s witnesses was permitted, over the objection of defendants, to state how many linemen there should be in stringing wires over feed wires, and where the men should be stationed. The specific objection to the questions which caused these answers was that the testimony was immaterial, irrelevant, and incompetent; that- it was not a subject-matter of expert testimony, and presented a question of fact, to be determined by the jury from the evidence. Objection was also made that the witness was not qualified to testify; but this part of the objection we need not consider, because the record discloses that his qualification as an -expert was supported by some evidence, and whenever that appears we will not ordinarily review the action of the trial judge in permitting such witness to testify. Rog. Exp. Test., sec. 22; 2 Jones, Ev., sec. 371. But counsel for appellants insist that the subject-matter of inquiry was of suet a character as to lie within the common experience of men moving in the ordinary walks of life, and therefore invoke the rule that under such circumstances the opinions of experts are inadmissible, as the jury is supposed to be amply competent to draw all necessary inferences from such common facts testified to by witnesses. While this rule is well established, yet we think counsel are in error in assuming that the subject-matter testified to in this instance necessarily lies within the common experience of men. The inquiry did not simply relate to the mere handling of copper wire between elevated positions, but it involved the question of the effect, method, and skill in handling such wire in close proximity to other wires heavily charged with electricity. We do not think it is true that the average man is acquainted with the effects of electricity, except as they produce almost unexplainable results' to the senses. Ordinary men know nothing at all about the methods by which these results are produced. And therefore it may be entirely probable that the ordinary number of men and methods used for handling overhead wires in unobstructed places, or places simply obstructed by materials other than electrical, would be no guide whatever as to the number of men and methods that should be employed in handling the same wires when crossing other heavily charged electric wires. In fact, in this very case it appears from the record that slight or temporary contact of the construction wire with the charged wire would have but a slight effect, while a greater or more continuous contact would have a deadly effect. The amount of contact that could be avoided or safely permitted by certain methods of handling the wires is certainly not information within the knowledge of men possessed of average intelligence, but must require knowledge, skill, and judgment possessed only by those who have made the science of electricity a study. It is true», evidence could have been introduced as to the number of men usually employed in handling such wires, and where they would be usually sta-ticmed; but such testimony would simply be either corroborative or contradictory of the opinion expressed, and, unless such witness testifying to such facts, possessed peculiar shill or judgment ¶in the manner of handling such wires under such circumstances, the. testimony would, after all, be of little value in aiding the jury in determining the necessity as to the number of men to be occupied in* the stations designated. Nor do we think that the authorities cited by counsel for appellants in support of their position apply to the facts in this case, and the cases cited are readily distinguishable. We agree with the court in the case of Baldwin v. Railroad Co., 68 Iowa 37, 25 N. W. 918, that it does not require expert testimony to determine the proper method of piling lumber so as to maintain its equilibrium. Any ordinary man could determine that fact. So it is clearly a matter to be determined by a man of ordinary intelligence as to whether the absence of any hand hold upon a freight ear, made necessary by certain operations, was or was not a defect. Dooner v. Canal Co., 164 Pa. 33, 30 Atl. 269. In the cases of Pennsylvania Co. v. Conlan, 101 Ill. 93, Railway Co. v. Armstrong (Tex. Civ. App.), 23 S. W. 236, and Jeffrey v. Railway Co., 56 Iowa 546, 9 N. W. 884, the courts simply hold that expert evidence showing that deceased did not exercise due care, or that the defendant did exercise such care, was not admissible. Neither could there be any occasion for expert testimony to determine whether a fence would be sufficient to. turn cattle (Enright v. Railroad Co., 33 Cal. 230), because that certainly is a matter of the most ordinary observation. So the case of Redfield v. Railway Co. (Cal.), 43 Pac. 1117, is not in point, because, while the court stated that that particular case “was not a case where opinions were admissible as evidence,” yet it further appears from the testimony that the witnesses from whom the expert testimony was attempted to be solicited “could speak only from their observations of the fact, . . . and not as to- the reason or motive for doing so-,” and, further, that “these questions did not call for the opinions- of these witnesses as experts, but practically called for the opinions of ethers as inferred from their conduct.” Sou in the case of Nutt v. Railway Co. (Or.), 35 Pac. 653, the real question determined was that it was not proper for a witness to state whether better appliances than those actually used might have been used in the fatal operation and incidentally the court advanced the opinion that the work of lowering tiles from a car to- the ground by rolling them down -some skids, aided by a rope wrapped around a stake, did not involve- any work of special skill or knowledge, and in this- we concur. The case of Flynn v. Light Co. (Mass.), 50 N. E. 937, is distinguishable from the ease at bar in this: that in the case then before the court the subject-matter of inquiry, upon which expert testimony was sought to be introduced, related simply to the handling of wires from elevated positions, without the additional facts which appear in the case now before us, relative to- the intervening and approximate- situation of other wires heavily charged with electricity. While the rule laid down by the Massachusetts court in that case might be supported, yet we do- not think the rule could properly be extended to include the facts in this case. The same is true of the ease of Cahow v. Railway Co. (Iowa), 84 N. W. 1056. In that case two men were moving a locomotive tender by means of pinch bars, and, upon one of the men withdrawing his bar, the tender started backward and ran over plaintiff. It was there properly held that the question whether two men were sufficient to move the tender with safety was not a subject-matter for expert testimony, because, given the weight -of the vehicle rolling upon a declining surface, it would require no man of more than ordinary capacity to determine the number of men of average strength necessary to stem its- movements. But that case does not cover all the facts in this case. The ordinary deduction that men would make from testimony relating to the mere weight of the wires, the situation and cbaraet&r of the poles, the number of men actually present, and all tbe other facts testified to in this case, would be practically useless, unless measured by the .shilled information received by them relating to the handling of these men and things in connection with the mysterious factor of electricity. We do not think any further review of the cases cited would be profitable, as they all appear to be readily distinguishable from the ease at bar; and, if it were simply a question of precedent, we find that many courts have gone much closer to the border line of admissible expert testimony than did the trial court in this case. Thus it has been held proper to ask an expert witness what course the defendant might have properly pursued for the relief of cattle while suffering from heat in a car. Lindsley v. Railway Co., 36 Minn. 539, 33 N. W. 1, 1 Am. St. Rep. 692. So, also, as to whether a raft was properly moored to prevent a collision. Hayward v. Knapp, 23 Minn. 430. What should have been done by a shipowner to prevent injuries to a cargo-. Guiterman v. Steamship Co., 9 Daly 119. What kind of bridgeu'ailing should have been provided? Taylor v. Town of Monroe, 43 Conn. 36. What the relative danger was in coupling cars- having certain equipments. Railway Co. v. Frawley, 110 Ind. 18, 9 N. E. 594. What the best way was to- handle heavy stones, with a derrick. Leslie v. Railroad Co. (Mass.), 52 N. E. 542. And so we might continue to cite a large number of cases where courts of high standing have permitted expert testimony to be given upon questions much more doubtful than those presented in this record. But we are fully convinced that the expert testimony admitted in this case comes absolutely within the rule, and that no error was committed in overruling appellants’ objection in this regard.

Appellants further complain that error was committed in permitting witnesses to answer as to the ordinary and usual method existing among telegraph or telephone companies 2 in regard to providing insulators, and as to the number oí wires that should be strung at any one time. The reason assigned for appellants’ objection is that it is an improper and insufficient manner to prove the existence of a custom in this respect. We do not think that either the questions or answers objected to contained anything which even tended to show a purpose upon the part of respondent to prove the existence of any custom, or to bind the defendants by its existence. While it is true that the word “usage,” “usual,” “custom,” or “ordinary,” is used, yet it is quite apparent that the only object of the inquiry was to inform the jury as to the ordinary manner in which such work is performed, and from such testimony determine whether or not defendants were or were not guilty of negligence. The case of Nelson v. Southern Pac. Co., 15 Utah 325, 49 Pac. 644, cited by appellants, does not affect this case at all. That was a case where it was sought to prove an existing custom which would excuse an ordinarily negligent act; and, under those circumstances, it was held by this court that the existence of the custom at the time of the accident must be shown to have existed such a length of time as to become generally known, and must be reasonable, uniform, certain, and not contrary to law. Put in this case it is not a question as to any custom existing permitting employees to' act negligently, or as to the construction of any appliances, or in fact to any custom, in a legal, technical sense. As we conceive it, it is simply an inquiry as to the ordinary manner in which certain work is done, and we have been cited to' no case where such testimony has been held inadmissible, but, on the contrary, courts have held that testimony tending to show that the customary manner of doing certain work (for instance, that a lineman was to determine for himself the safety of poles) was perfectly proper. Tracy v. Telegraph Co. (C. C.), 110 Fed. 103. So it has been held proper to testify as to the usual and customary time allowed at any station, not for the purpose of establishing any hard and fast rule as to the custom, but merely bearing upon the question as to whether or not a reasonable time was allowed to enable passengers to safely leave a train. Fuller v. Railway Co., 21 Conn. 557.

Appellants also assign as error the following questions and answers admitted in testimony by one of plaintiff’s witnesses: “When you made that statement -to' him, state 3 what his appearance was — as to whether he appeared, or not, to realize there was any danger? A. He certainly appeared to me as though there was no danger at all Q. Describe his appearance as well as you can ? A. He' just looked at me in a disgusted way, like, as much as to say I did not know anything about it.” Objections were made mainly upon the ground that whether or not deceased realized the danger at that time was a mental question, which the witness had not shown himself capable of judging, and that the statement of witness that deceased looked in a disgusted way was a conclusion. We think that both of these objections are untenable. The statement as to the appearance of another is a fact, and not a conclusion, and any non-expert witness may be able, under certain circumstances, to determine whether or not another person realizes an impending danger. It appears from the record that, just before deceased took hold of the fatal wire which caused his death, the witness answering the above question stood by the side of deceased, and said to him: “George, she is a cracker jack. I had a touch, and it liked to snake my head off.” Then, looking at deceased, the witness says that he did not appear to apprehend or realize the danger he had just mentioned, but looked disgusted. It is urged by appellants that this statement is not only a conclusion, but an erroneous conclusion. Of course, the correctness of the conclusion was a matter of fact to be determined by the jury; but we think that the statements made by the witness might be wholly consistent, and, while not very well or fully expressed, still state the facts as they appeared to him at that time. The witness realized the danger, as evidenced by his remark; but the total absence of fear or reluctance which, might naturally be expected to. produce itself upon the face of deceased must have been strongly impressed upon the witness’s mind, especially as the deceased’s only expression was one of disgust at the offered warning. Of course, whether or not the conduct or the appearance of the man just prior to his death evinced that care for his own safety that should be exercised by an ordinarily prudent person was a question of fact for the jury, but that does not affect the admissibility of the testimony. The experience of men teaches us that knowledge of danger produces external signs of fear, and also that the absence of such fear under impending danger either evinces absence of knowledge of such danger, or a disregard for its consequences. In either event, it is proper for the witness to state the appearance of a person who is subsequently' the victim of the natural result of such danger. In the case of People v. Lavelle (Cal.), 12 Pac. 226, a non-expert was asked the question: “What was the appearance of this man at the time, with reference to his being rational or irrational?” This was objected to on the ground that the witness could not testify from appearances as to whether the man was rational or irrational. The court held the question to be a proper one, because “the evidence sought to be elicited was not the opinion of the witness as to the mental sanity of the defendant, based on an acquaintance with him, but was, rather, as to a fact, namely, his appearance at the time.”

Appellants also assign as error the exclusion of their proffered testimony as to whether the deceased, an unmarried man, was at the time of his death paying attention to 4 some young lady. Apart from the fact that no offer was made to prove that such attention would probably result in or lead to matrimony, we think the testimony was properly excluded as altogether too remote to- affect the question as to whether such condition at the time of his death would affect tbe support which he was likely to render to his parents, had he lived.

Appellants also complain that evidence was erroneously admitted respecting the authority which was given by the general foreman, placing Buchanan in charge of the 5 work at the time the accident occurred. The contention is that ihe general foreman possessed no authority either express or implied, to employ any subagent. In this statement we can not agree. We think from the facts in the case that an implied authority did exist. The defendant had employed Mosher to have general charge of the construction of the telegraph line between Park City and Salt Lake City, which required the services of some nine or ten men. , Up to about three days before the accident these men were directed by an asserted foreman, who had the key to a box car containing their tools. After his discharge, Buchanan took his place, and had charge of the tools. The evidence shows that the necessity of the work required a man constantly in charge, and that.such a. charge was vested in both Mosher and Buchanan. Under such circumstances, we think the authority of Buchanan may be implied. It is not necessary in every instance to show that a subagent has been expressly appointed by the master. Says Mr. Mechem, in his work on Agency: “It is obvious, too, that there are many cases where, from the very nature of the duty, or the circumstances under which it is to be performed, the employment of sub-agents is imperatively necessary, and that the principal’s interest will suffer if they are not so employed. In such cases the power to employ the necessary subagents will be implied. The authority of an agent is always construed to include the necessary and usual means to execute it properly.” In Shear. & R. Neg., sec. 156, it is said: “The master is, of course, liable for the negligence of one whom his servant employs by his authority to aid such servant in the master’s business. Such authority need not be expressed, but may be implied from the nature of the business or the course of trade. Thus such an authority would almost necessarily be implied in favor of a servant intrusted with the whole care of a farm, or the construction of a building, or distribution of a large quantity, of goods, or any other task which could not be performed within a reasonable time by one man.” If an exigency exists or arises making it necessary for the proper carrying out of the master’s business that a subagent should be employed, then the authority so to do will be implied. Mickelson v. Railway Co., 23 Utah 42, 64 Pac. 463; Underwood v. Birdsell (Mont.), 9 Pac. 922. We think the court committed no error in admitting the testimony complained of, nor in refusing to give the instruction requested by appellants relating to this same subject-matter.

The trial court properly excluded appellants’ proffered testimony tending to show that Buchanan received no greater wages than the other linemen. Such testimony was too 6 remote to affect the question of whether or not Buchanan was a vice-principal. “The law requires an open and visible connection between the principal and evidentiary facts, and the deductions from them, and does not permit a decision to be made on hemote inferences.” Jones, Ev., sec. 137.

Appellants also strenuously insist that a peremptory instruction in their favor should have been given, because the parents of the deceased, and his only heirs, prior to the 7 commencement of the action, had executed an assignment to plaintiff personally of all their right, title, and interest in the cause of action. We think the trial court correctly refused such instruction. While we do not think that such assignment is or can be valid or of any effect, yet, even. if it were, still the real party pointed out by the statute, to-wit, the personal representative of the deceased, brought this action, and a judgment herein will be a complete bar to any action now or hereafter brought by the heirs or their assignee. Rev. St., sec. 2912. Besides, this objection was urged too late, and must be held to have been waived. “The objection that the plaintiff in an action is not the real party in interest, as required by the Code, when available by 8 way of defense, must be raised by demurrer or answer, or it will be considered to have been waived.” 15 Enc. Pl. and Prac., 713; Rev. St., sec. 2966; Smith v. Hall, 67 N. Y. 50; Spooner v. Railroad Co., 115 N. Y. 30, 21 N. E. 696; Trust Co. v. Brown, 59 Mo. App. 461.

We also think that defendants’ requests Nos. 8, 17, 15, and 22 were properly refused — the first two, because the matters therein contained had been covered in other 9 10 terms by the general charge; the third, because it was not applicable to the evidence; and the last, because of both of the reasons which made it proper to exclude the first three.

Nor' do we think that any error was committed in giving instruction No. 7. That instruction reads as follows:

“(7) By ‘contributory negligence’ is meant such a want of reasonable care and caution on the part of a person injured as directly contributed and caused the injury, and 11 without which such injury wordd not have occurred; and if you find from the evidence that the deceased, George Silkett, failed and neglected to use such reasonable and ordinary care and prudence, and that such failure contributed to the happening of the accident, and without which the accident would not have happened, you should find for the de¡-fendants.” While the first part of the instruction is open to criticism, yet we think that, read in connection with the latter part of the instruction, and considered as a whole, it is not misleading, nor does it constitute reversible error.

We see no reversible errors in the record, and the judgment is therefore affirmed, with costs.

BASKIN, O. J., and BARTCII, J., concur.