Gavisk v. Pacific Railroad

Bliss, Judge,

delivered the opinion of the court.

This suit was brought under 'the second section of the damage act. (Wagn. Stat. 519.) The plaintiff’s husband was employed by the company about a switch, and among his duties was to get on cars and let off and set brakes. A freight train was coming, and the conductor desired to throw eleven of the cars on the switch without stopping the train. To do this the conductor detached the engine while running, and then detached the eleven cars from those following. The switch was thrown open after the engine passed, so that the eleven cars entered upon the sidetrack, and then .closed in time for the others to follow the engine. Two cars were standing upon the side-track with brakes set, and as the engine passed,-the engineer called out to Gavisk to jump upon them and loose the brakes. He did so, swung his light (it was dark) toward the cars approaching, calling out, “ Go slow, go slow!” They struck the car upon which he was standing, and he fell between the cars and was instantly killed.

Upon the trial the plaintiff’s witnesses testified that the cars came upon the switch at an unusually rapid and dangerous rate ; that it was a down-grade, etc.; but the conductor testified that the running was not more rapid than necessary to make the switch, and much less than the other witnesses had testified to. The plaintiff obtained judgment.

While the conductor was upon the stand, after having testified to his experience upon railroads, he was asked to “ state whether or not, if James Gavisk had, at' the time of the cars striking, been holding on to the brakes and exercising ordinary care and prudence in his own protection and preservation, he would have been thrown from the cars.” This question was objected to and ruled out, and properly so. The only pretext for its admission would be upon the ground that he was an expert. An expert is supposed to have some special knowledge over and above men of ordinary education, derived from his peculiar pursuits or experi *277 ence, that entitles his opinion to be received in evidence. But “ when this experience is of such a nature that it may be presumed to be within the common experience of all men of common education moving in the ordinary walks of life, there is no room for the evidence of opinion ; it is for the jury to draw the inference.” (N. E. Glass Co. v. Lovell, 7 Cush. 321 ; see also White v. Ballou, 8 Allen, 408 .) To have permitted this question would have been to take the case from the jury and submit it to the witness, and there was no fact involved in it that required peculiar or professional knowledge.

The court admitted the following letter in evidence, and its admission is assigned for error:

“ President’s Okbtce, Paciitc Railroad,

St. Louis, July 23,1868.

“ To Emma G. Gavisk, Knobnoster, Johnson Co., Mo.:

“Madam: At a meeting of the directors last Tuesday I was instructed to pay you as a donation, &c., $250. I am necessitated to go to New York this afternoon, and on my return (about the 20th of August) will remit you the money. Respectfully,'

“E. G. Gavisk.

'G. R. Taylor, President.”

I do not think this letter should have been admitted. It was irrelevant, and its production would have a tendency to check charitable donations by the company to those who suffer in their employ, when there is no legal liability. And yet I cannot see how the-defendant was injured by it upon this trial. It admitted nothing; it was simply an offer of charity to the suffering wife of an employee; and without going into the questions raised by-counsel in relation to such offers, supposing them to be admissions, it is not such an error as should reverse the judgment.

Other questions were ^raised, of less weight than those considered, which I will not specify. The case was tried fairly, and the verdict was warranted by the evidence. The deceased was zealous in the performance of his duty; in making the running sAvitch, which at all times- requires great care and skill, the cars came in collision; with one hand he was swinging his light to warn che conductor, and it cannot be shown whether he was holding on to *278 the brake with the other and his hold was broken, or whether, in his eagerness to arrest the coining train, he neglected this precaution ; but there can be no presumption of carelessness. The only conflict of evidence was in relation to the rapidity with which the cars entered the switch, and the jury necessarily passed upon that matter, and believed the witnesses for the plaintiff. We can not say they were mistaken.

Judgment affirmed.

Judge Adams concurs. Judge Wagner absent.