HOOK, Circuit Judge.
Steven Collier, a minor, suing by bis next friend, recovered a judgment for personal injuries sustained in the service of E. N. Gillespie, who with others was engaged in the oil and natural gas business. The plaintiff had been a roustabout on the work, and was put in charge of a drilling machine, with boiler and engine. The negligence charged was that the engine was old and defective, in that the parts of the throttle were so worn that steam leaked into the [300]*300cylinder, though the only mechanical means had been used for shutting it off, and that he had not been instructed and was ignorant of the danger. On the occasion of the accident he had shut off the steam, as he supposed, and stopped the engine, and oiled it. The engine had stopped on a dead center, and while he was in the act of moving the flywheel, with a stick as a lever, one end between the spokes and the other under his arm, the steam which had leaked into the cylinder caused the wheel to revolve suddenly and violently. He was thrown upward and into the machinery, and severely injured.
[1, 2] It is urged by defendant that the action should have been dismissed, because there was no order of the court appointing the next friend of the plaintiff. But the Oklahoma civil procedure (section 4686, Rev. Laws 1910) applicable to cases like this does not require such an order. It provides that the action of an infant must be brought by ■his guardian or next friend, and confers power upon the court to dismiss it when brought by the next friend, “if it is not for the benefit of the infant, or substitute the guardian of the infant, or any person as the next friend.” The plain implication from this provision is that the initiative in the selection of the next friend is not with the court, and that its power is subsequent and supervisory, in the interest of the minor. This is also the rule in Kansas, whence the Oklahoma statute was taken. See Abbott v. Abbott, 68 Kan. 824, 75 Pac. 1041. It may be further observed that the judgment recites that “the action of Louis Collier in suing as next friend of S'teven Collier is by the court ratified and approved.”- Even though the court itself should have appointed the next friend, this approval in the judgment would cure the omission. See Hill v. Reed, 23 Okl. 616, 103 Pac. 855. The matter is not jurisdictional.
[3] Complaint is made of an instruction that plaintiff was not bound by a release of damages. The answer alleged that in consideration of certain payments made him plaintiff had acknowledged full satisfaction for his injuries, and had released and discharged the defendant from liability; also that plaintiff had not repaid or offered to repay the money. The evidence, which was uncontradicted, showed that plaintiff continued to receive his wages for about eight months after the accident, that when a representative of defendant gave him a check for the last monthly wage he requested him to sign a receipt “to show the office he paid the amount,” that nothing was said about settling a claim for damages, and that plaintiff signed the paper without reading it. It contained the words “as payment in full for all damages.” The receipt was not set up in the answer, nor was it even averred that plaintiff had given a written release or discharge pf his claim. We think the instruction was right under the circumstances, regardless of the particular reason assigned by the court.
[4] A witness for the plaintiff was allowed to testify, over objection, to the defective condition of the throttle, as disclosed by an examination about 35 days after the accident. Some time after the accident, but just how long does not appear, the engine was put out of use, and was not again employed before the witness took the throttle off and inspected it. The rule is that, upon -an issue as to the condition of [301]*301machinery or appliances at the time of an injury, evidence of a defective condition at a later time is inadmissible, without proof from which a reasonable inference may be drawn that there has been no substantial change. But the other evidence in the case showed so clearly the throttle was defective and leaked steam, and complaint of it had been made on that ground, that we think no prejudice resulted from the testimony of the witness. The examination of the throttle was made by the witness to verify what he thought was the cause of the leakage he noticed before the accident.
[5] Complaint is also' made because the court sustained objections to questions calling for the opinions of witnesses as to whether the machine was “reasonably safe and suitable for pumping,” whether “a little leak in the throttle would render the machine unsafe or unsuitable or dangerous to- pump with,” also- what its condition was as to safety and suitability “for pumping or otherwise.” The opinions of those who are learned or experienced in questions of science, skill, or trade, which are not within the understanding of men in general, are admissible in evidence, when helpful to the decision of the ultimate fact. But so various are the subjects and so frequently does the common understanding in the communities from which juries are drawn depend upon local conditions that no hard and fast line can safely be drawn, particularly by an appellate court. “Cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous.” Spring Co. v. Edgar, 99 U. S. 645, 658 (25 L. Ed. 487). In Gila Valley R. Co. v. Lyon, 203 U. S. 465, 27 Sup. Ct. 145, 51 L. Ed. 276, upon an issue whether a railroad company had performed its duty respecting the safety of a working place, witnesses were allowed to give their opinions that a buffer at the end of a track was unsafe, and that an overhead structure was too near the tops of cars. The Supreme Court said:
“In the eases of all the witnesses, we think the question of the admissibility of their evidence was one within the reasonable discretion of the trial court, and that the discretion was not abused. All the witnesses had had practical experience on railroads, and were familiar with structures and the character of buffers mentioned in the evidence. There was certainly enough to call upon the court to decide upon the admissibility of their opinions under these circumstances, and we ought not to interfere with the decision of the trial court in this case.”
[6] That there are cases in which a trial court has a certain discretion in receiving or rejecting expert or opinion evidence was also recognized by this court in United States Smelting Co., v. Parry, 92 C. C. A. 159, 166 Fed. 407. This rule, however, is not really involved in the case at bar. The issue was not whether the engine was safe or dangerous to pump- with. The engine was not at work when the plaintiff was injured. It had been shut down to be oiled, and was supposed to be at rest, and while truly in that condition' the manual movement of the flywheel to- throw the piston and crank out of alignment would manifestly not have been dangerous. A considerable leakage of steam might have impaired the efficiency or suitability of the engine for pumping, but without danger to- the workman in his proper position [302]*302while pumping was going on.
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HOOK, Circuit Judge.
Steven Collier, a minor, suing by bis next friend, recovered a judgment for personal injuries sustained in the service of E. N. Gillespie, who with others was engaged in the oil and natural gas business. The plaintiff had been a roustabout on the work, and was put in charge of a drilling machine, with boiler and engine. The negligence charged was that the engine was old and defective, in that the parts of the throttle were so worn that steam leaked into the [300]*300cylinder, though the only mechanical means had been used for shutting it off, and that he had not been instructed and was ignorant of the danger. On the occasion of the accident he had shut off the steam, as he supposed, and stopped the engine, and oiled it. The engine had stopped on a dead center, and while he was in the act of moving the flywheel, with a stick as a lever, one end between the spokes and the other under his arm, the steam which had leaked into the cylinder caused the wheel to revolve suddenly and violently. He was thrown upward and into the machinery, and severely injured.
[1, 2] It is urged by defendant that the action should have been dismissed, because there was no order of the court appointing the next friend of the plaintiff. But the Oklahoma civil procedure (section 4686, Rev. Laws 1910) applicable to cases like this does not require such an order. It provides that the action of an infant must be brought by ■his guardian or next friend, and confers power upon the court to dismiss it when brought by the next friend, “if it is not for the benefit of the infant, or substitute the guardian of the infant, or any person as the next friend.” The plain implication from this provision is that the initiative in the selection of the next friend is not with the court, and that its power is subsequent and supervisory, in the interest of the minor. This is also the rule in Kansas, whence the Oklahoma statute was taken. See Abbott v. Abbott, 68 Kan. 824, 75 Pac. 1041. It may be further observed that the judgment recites that “the action of Louis Collier in suing as next friend of S'teven Collier is by the court ratified and approved.”- Even though the court itself should have appointed the next friend, this approval in the judgment would cure the omission. See Hill v. Reed, 23 Okl. 616, 103 Pac. 855. The matter is not jurisdictional.
[3] Complaint is made of an instruction that plaintiff was not bound by a release of damages. The answer alleged that in consideration of certain payments made him plaintiff had acknowledged full satisfaction for his injuries, and had released and discharged the defendant from liability; also that plaintiff had not repaid or offered to repay the money. The evidence, which was uncontradicted, showed that plaintiff continued to receive his wages for about eight months after the accident, that when a representative of defendant gave him a check for the last monthly wage he requested him to sign a receipt “to show the office he paid the amount,” that nothing was said about settling a claim for damages, and that plaintiff signed the paper without reading it. It contained the words “as payment in full for all damages.” The receipt was not set up in the answer, nor was it even averred that plaintiff had given a written release or discharge pf his claim. We think the instruction was right under the circumstances, regardless of the particular reason assigned by the court.
[4] A witness for the plaintiff was allowed to testify, over objection, to the defective condition of the throttle, as disclosed by an examination about 35 days after the accident. Some time after the accident, but just how long does not appear, the engine was put out of use, and was not again employed before the witness took the throttle off and inspected it. The rule is that, upon -an issue as to the condition of [301]*301machinery or appliances at the time of an injury, evidence of a defective condition at a later time is inadmissible, without proof from which a reasonable inference may be drawn that there has been no substantial change. But the other evidence in the case showed so clearly the throttle was defective and leaked steam, and complaint of it had been made on that ground, that we think no prejudice resulted from the testimony of the witness. The examination of the throttle was made by the witness to verify what he thought was the cause of the leakage he noticed before the accident.
[5] Complaint is also' made because the court sustained objections to questions calling for the opinions of witnesses as to whether the machine was “reasonably safe and suitable for pumping,” whether “a little leak in the throttle would render the machine unsafe or unsuitable or dangerous to- pump with,” also- what its condition was as to safety and suitability “for pumping or otherwise.” The opinions of those who are learned or experienced in questions of science, skill, or trade, which are not within the understanding of men in general, are admissible in evidence, when helpful to the decision of the ultimate fact. But so various are the subjects and so frequently does the common understanding in the communities from which juries are drawn depend upon local conditions that no hard and fast line can safely be drawn, particularly by an appellate court. “Cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous.” Spring Co. v. Edgar, 99 U. S. 645, 658 (25 L. Ed. 487). In Gila Valley R. Co. v. Lyon, 203 U. S. 465, 27 Sup. Ct. 145, 51 L. Ed. 276, upon an issue whether a railroad company had performed its duty respecting the safety of a working place, witnesses were allowed to give their opinions that a buffer at the end of a track was unsafe, and that an overhead structure was too near the tops of cars. The Supreme Court said:
“In the eases of all the witnesses, we think the question of the admissibility of their evidence was one within the reasonable discretion of the trial court, and that the discretion was not abused. All the witnesses had had practical experience on railroads, and were familiar with structures and the character of buffers mentioned in the evidence. There was certainly enough to call upon the court to decide upon the admissibility of their opinions under these circumstances, and we ought not to interfere with the decision of the trial court in this case.”
[6] That there are cases in which a trial court has a certain discretion in receiving or rejecting expert or opinion evidence was also recognized by this court in United States Smelting Co., v. Parry, 92 C. C. A. 159, 166 Fed. 407. This rule, however, is not really involved in the case at bar. The issue was not whether the engine was safe or dangerous to pump- with. The engine was not at work when the plaintiff was injured. It had been shut down to be oiled, and was supposed to be at rest, and while truly in that condition' the manual movement of the flywheel to- throw the piston and crank out of alignment would manifestly not have been dangerous. A considerable leakage of steam might have impaired the efficiency or suitability of the engine for pumping, but without danger to- the workman in his proper position [302]*302while pumping was going on. On the other hand, with the steam shut off and the engine-believed to be fixed at rest, an unexpected movement might have been dangerous to a man at work about it as the plaintiff was. The questions asked the witness did not direct attention to the particular work at which the plaintiff was engaged at the time, and the court therefore properly excluded them. Moreover, one of the witnesses had already testified he had not observed the engine leaking steam, had nevef had occasion to' shut it down, and had no reason to find out whether it leaked or not. The other witness of whom the remaining questions were asked had already substantially answered them. There is nothing else of moment in the case.
The judgment is affirmed.