Stewart v. Sloss-Sheffield Steel & Iron Co.

54 So. 48, 170 Ala. 544, 1910 Ala. LEXIS 257

• Court: Supreme Court of Alabama
• Decided: November 30, 1910
• Status: Published

Opinion

SIMPSON, J.

This is an action by the appellant against the appellee, for personal injuries received by the plaintiff, as an employee of the defendant, while working in a coal mine of defendant, caused by the falling of the roof of the mine on plaintiff.

There was no error in overruling the demurrer to the second plea.—Merriweather v. Sayre Mining & Manuf’g Co., 161 Ala. 441, 445, 446, 453, 49 South. 916 (pleas 2 and 8); New Connellsville Coal & Coke Co. v. Kilgore, 162 Ala. 642, 50 South. 205, 209 (plea 5).

On the same authorities, there was no error in overruling the demurrers to the third, fourth, and fifth pleas.

There was no error in sustaining the objection to the question to the witness Goodloe Robinson, “Were the timbers in this .mine, at the point where the rock fell and injured plaintiff, sufficiently close together to make the roof reasonably safe?” While the witness stated that he ivas a contractor, and had been working in an ore mine eight or nine years, yet his evidence shows that his work was in getting out coal, and not in constructing the roofs, etc., of the mine. It is also true that, at the time this question was asked, there had been no proof as to how this roof was constructed, nor how close the timbers were together, and the witness did not state how close they were together, nor how close they should be, nor that he knew how close they were togeher.—Birmingham Railway & Elec. Co. v. Baylor, 101 Ala. 489, 498, 13 South. 793. In the case of McNamara v. Logan, 100 Ala. 187, 196-197, 14 South. 175, 178, the witness ivas shown to he “perfectly familiar with the business in all of its details, including the driving of construction of cross-entries, their width,” etc., “the necessity of the driver to take a position between the cars and the wall of the entry, * * * and the correlative necessity for sufficient space for this work to be done”; and he specially deposed that he was “acquainted with the general construction of cross-entries, and that the rule was to have the space referred to about three feet in width.” Consequently he was allowed to testify as to whether it was safe to have this space as narrow as a foot, or a foot and.a half. In the case of Birmingham Furnace & Manufacturing Co. v. Gross, 97 Ala. 221, 230, 12 South. 36, the question as to whether some men can stand more gas than others was a matter of common knowledge to which any one could testify, and while the court might, for that reason, have excluded the testimony, yet it could not be placed in error for allowing it. Besides, the witness, who had been in the business for four or five years, had had opportunities for observing that fact. In the case now under consideration, tbe question Avhether tbe props were sufficiently close together to be reasonably safe was for tbe jury to consider, and tbe witness should have been required to state facts, from which tbe jury could decide that matter, and not merely give bis general opinion, without stating tbe facts.—Birmingham Ry., Lt. & P. Co. v. Martin, 148 Ala. 9, 14, 42 South. 618. In the case of Alabama Connellsville Coal & Coke Co. v. Pitts, 98 Ala. 285, 289, 290, 13 South. 135, 137, tbe witness was shown to have been long and well acquainted with tbe use of tbe machinery, and be was allowed to testify, not whether it was properly constructed, but whether that particular pattern of tipple “was reasonably adapted for the purpose for which it was used,” which was evidently peculiarly within his knowledge.

The nest assignment insisted on is that the court erred in sustaining the objection to the question to Dr. Downing, “Would you say from what you saw of the plaintiff and from what you know of his injuries that he was permanently injured?” The general rule has been declared that the qualifications of a witness to testify as an expert is a matter largely within' the discretion of the court trying the case, and the appellate court will not reverse its rulings unless there has been an abuse of that discretion; and Mr. Wigmore states that the exercise of the discretion in this particular should not be reviewed at all.—Gila Valley R. R. Co. v. Lyon, 203 U. S. 465, 475, 27 Sup. Ct. 145, 51 L. Ed. 276; Chateaugay Iron Co. v. Blake, 144 U. S. 476, 484, 12 Sup. Ct. 731, 36 L. Ed. 510; Spring Co. v. Edgar, 99 U. S. 645, 658, 25 L. Ed. 487; Amory v. Inhabitants of Melrose, 161 Mass. 556, 39 N. E. 276; Bowen et al. v. Boston & A. R. Co., 179 Mass. 524, 61 N. E. 141; Allen v. Voje, 114 Wis. 1, 89 N. W. 925; I. L. Corse & Co. v. Minn. Grain Co., 94 Minn. 331, 102 N. W. 728, 730; 1 Wigmore on Ev. § 561, and notes. Dr. Downing bad testified that be was called to see tbe plaintiff in April of tbe year previous to tbe trial in February: that be Avas then suffering from tbe injury; that bis back was injured, he appeared to have sustained an injury in tbe region of tbe kidneys, and was passing blood through bis urine, and that be bad an injury on bis bead and a bruise between his shoulders; and that tbe last time be saw tbe plaintiff was “in August of last year” and be Avas then unable to do any work. In view of tbe evidently cursory examination of tbe plaintiff’s injuries by tbe doctor, and tbe length of time since be bad seen him, and in vieiv of the form of tbe question asking “and from what you know of bis injuries, etc.,” without stating bow that information was obtained, we cannot say that tbe court erred in excluding the testimony.

There was no error in overruling tbe objection to tbe question to tbe witness Hanby, “Explain to tbe jury Avliat is meant by robbing, and explain whether or not robbing is a more dangerous occupation than driving a beading.” Tbe objection was to tbe question as a Avbole, because irrelevant, incompetent, invasive of tbe province of the jury, and calling for a conclusion of tbe witness. Tbe Avitness showed that be was qualified to testify as an expert, and it was proper to explain tbe difference between “driving” which the plaintiff had been doing before, and “robbing,” which be was doing at tbe time of tbe injury, and to show whether the latter was more dangerous than tbe former, and therefore called for extra precaution.

There was no error in overruling tbe motion to exclude tbe evidence about tbe time that Holsomback went from mine No. .1 to mine No. 2. Holsomback had testified that be did not know whether tbe company’s books showed that date, and Rogers testified that the pay roll might not show it, but that a small ledger would. The books do not constitute such a record as to exclude, evidence of the facts of which a witness has independent knowledge. This testimony is not analogous to proof by parol of what the books contain.—17 Cyc. 480, 481; Godbold v. Blair & Co., 27 Ala. 592; M. & C. R. R. Co. v. Maples, 63 Ala. 601, 607. In the case of Roden & Co. v. Bowen, 103 Ala. 325, 329, 15 South. 598, it is stated that the witness had no independent knowledge of the matter proposed to be testified to.

The evidence in this case with regard to the knowledge of the plaintiif, as to the danger of working at the place where the injury occurred, does not come, up to that described in Sloss Iron & Steel Co. v. Knowles, 129 Ala. 410, 416, 30 Suth. 584, so as to justify the giving of the general affirmative charge, in favor of the defendant. The plaintiif testified that he did not know that the rock was likely to fall; that, although he knew that Avhen the pillars are taken down in robbing it is necessary to put in timbers to support the roof, he did not know how many pillars had been taken out, did not know whether timbers were needed, did not know anything about the timbers, and had nothing to do with the timbering of the mine. We think this raised a conflict in the evidence on the question of contributory negligence, and that the court erred in giving the general affirmative charge in favor of the defendant.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.