McMahon v. Bangs

62 A. 1098, 21 Del. 178, 5 Penne. 178, 1904 Del. LEXIS 47

• Court: Superior Court of Delaware
• Decided: May 31, 1904
• Docket: No. 104
• Status: Published

Opinion

Boyce, J.:

We overrule the objection and admit the testimony.

A. The expectation of life of a person fifteen years of age is 45 50-100.

James F. MeMahon was recalled and asked:

Q. What wages were you paid as driver ?

(Any proof of earning capacity was objected to by counsel for defendant as immaterial, because a suit by the father of the boy was pending seeking to recover wages for the boy until 21 years of age. Plaintiff’s counsel contended he was entitled to prove that the plaintiff was in such condition up to the time of the accident that he could earn money.)

A. Seventy-five cents a day.

Q. When you went there with your horse and cart as its driver were you notified by Mr. Bangs or anyone in his employ of the character of danger connected with that employment ?

(Objected to by counsel for defendant first, because the witness had been employed at the quarry for eight weeks and knew the danger; second, he was an employee and assumed the usual risks of his employment.)

We hardly think that this question is admissible under the evidence adduced in this case.

Alida Turner, head nurse of the Homeopathic Hospital in Wilmington, was produced by plaintiff, and after testifying as to the condition of the plaintiff when brought to the hospital, was questioned concerning a certain record of the case which she testifled was regularly kept by one of the nurses of said hospital, who had since been dismissed and was not present in Court. Said record was thereupon offered in evidence and was objected to by counsel for defendant on the ground that the only person who could testify to said record so as to make it proper evidence would be the person who made it.

It seems to the Court that the object of offering this paper in evidence is to show pain and suffering. For that purpose the nurses themselves might be called, and under proper circumstances this paper could be used to refresh their memories beyond that we think it is not admissible.

Arthur Sullivan, being produced as a witness on behalf of plaintiff, was examined as follows :

By Mr. Whiteman:

Q. Have you ever had any experience in charge of blasting operations ? A. Yes, sir.

Q. What was that experience ; how many years ? A. Three .and a half years. ,

Q. What was it? A. Loading holes with dynamite and putting a fuse off with a battery.

Q. Where were you blasting ? A. All about different parts •of the City of Wilmington.

Q. In connection with what work or department ? A. The Street and Sewer Department, for which I am foreman.

Q,. Do you know the kind of blasting that was done at the Bellevue quarry ? A. Well, I have never seen it done in the quarry, •but I have an idea about it.

Q,. Is that the same kind of blasting as you did here so far .as boring holes and putting in blasts is concerned ? A. I believe it is.

Q,. I will ask you if you know of any method that can be ■employed to protect persons nearby when blasting is being carried •on, from injury by flying fragments of rock?

(Mr. Emmons objects to the above question, and pending the ruling of the Court upon the objection, in cross-examination draws •out from the witness the fact that the witness had had no experience with stone quarries, and that while he had set off blasts while working for the Street and Sewer Department in the City of Wilmington, he did not know how much powder or dynamite was used .as a charge in the Bellevue quarry, or whether it was a greater or less amount than was used in the City work which he had been engaged in doing; or what precautions were taken in quarry blasting or whether it was necessary or feasible in the Bellevue quarry to cover their blasts. Mr. Emmons then stated that he objected to the question upon two grounds: (1) that under the testimony adduced there was no duty resting upon the defendant to cover the blasts; (2), that the witness was not qualified to speak as an expert upon the subject of what precautions were employed to protect persons near blasting operations in a quarry.)

Whiteman, for plaintiff, contended that the method of blasting or protecting the public was the same whether the blasting was done in a city or in a quarry in the country, therefore that the witness was qualified to speak as an expert.

We think the witness is not qualified to speak as an expert in this case.

(The plaintiff rested, and Emmons for defendant moved for a nonsuit on the ground that the proof established the relation of master and servant between the defendant and the plaintiff; that the employee who failed to give warning of the blast, whereby the plaintiff was injured, was a fellow-servant with the plaintiff, and that the failure of a fellow-servant to perform his duty could not be charged to the master; that the plaintiff, being a servant of the defendant assumed all the ordinary risks of his employment, among which was the danger arising from the fact that the blast had not been covered.

Said motion was argued at length by the respective counsel and numerous authorities were cited.)

We have carefully as we could, in the limited time afforded, examined the authorities of counsel, and we have also examined all of the testimony of the witnesses in this case; and we have reached the conclusion that as between the plaintiff and the defendant at the time of the accident the relation of master • and servant existed. We have further concluded that as between the plaintiff and the person whose negligence it is alleged caused the injury complained of there existed the relation of fellow-servants, and because of such relation the motion for a nonsuit is granted ; there being no liability on the part of the defendant.

(The plaintiff declining to take a nonsuit, upon request of counsel for defendant the Court gave binding instructions to the jury as follows):

Boyce, J., charging the jury:

Gentlemen of the jury:—We instruct you to find a verdict for the defendant.

Verdict for the defendant.