Opinion
No. 33575.
April 17, 1939. Suggestion of Error Overruled May 22, 1939.
1. TRIAL.
The jury can consider knowledge which is common to average man and springs from ordinary relations and experiences of life, and can apply their own knowledge as regards such relations and experiences, but their province in respect to knowledge of facts which they may judicially notice and act upon without record evidence of particular fact is no broader than that of judge.
2. TRIAL.
The trial judge has power and duty of supervision and review over jury verdicts.
3. EVIDENCE.
A matter within common knowledge of jury is a matter of which the trial judge and Supreme Court can take judicial knowledge.
4. EVIDENCE.
The Supreme Court can resort for actual knowledge of something of which it has judicial knowledge to any such informative source as the Supreme Court may deem dependable.
5. EVIDENCE.
The Supreme Court can take judicial knowledge that a log weighing 438 pounds or 538 pounds is not too heavy a burden for six workmen of normal strength.
6. MASTER AND SERVANT.
A workman presenting himself for work carrying logs and taking wages therefor and not complaining of physical incapacity, represents himself as capable of carrying more than a load of 73 or 89 pounds on soft and uneven ground.
7. EVIDENCE.
It is common knowledge that timber or logs have considerable weight which varies according to species of log or timber, but weight of timber or logs is not a matter of common knowledge.
8. EVIDENCE.
The weight of log of given size and particular species and no longer in existence must be shown by testimony of witnesses who have had such special experience as will make their opinion of distinct value beyond that which might be entertained by a man of no such experience.
9. TRIAL.
A verdict should express jury's own independent conclusion from facts and circumstances in evidence, and not be the echo of opinions of witnesses.
10. TRIAL.
It is exclusive province of jury to judge ultimate facts in issue.
11. APPEAL AND ERROR.
In considering whether verdicts are sufficiently sustained, court should avoid substitution of conclusion of witness for that of jury by requiring the best reasonably attainable evidence of facts upon which jury is to arrive at its conclusion.
12. EVIDENCE.
In employee's tort action against employer for injuries sustained in carrying log which was no longer in existence, best evidence of weight of log would be size of log, species of timber to which it belonged, and estimates of men specially trained in handling of timber as to weight of such log.
13. EVIDENCE.
In examining and cross-examining men who were specially trained in handling of timber and who testified as to weight of log of certain size, commonly recognized and customarily used books or tables on timber weights could be considered (Code 1930, sec. 7358).
14. EVIDENCE.
The assertion of witnesses that a log was too heavy to be carried by six men without showing what experience such witnesses had had in judging such weight, would invade the province of the jury, and would also violate the best evidence rule.
15. EVIDENCE.
An assertion of witnesses that log was too heavy to be carried by six men would be insufficient to raise issue because of ambiguity in that it might have meant that the burden was too heavy for six men carrying the log by hand, but was not too heavy to be safely carried by the use of sticks.
16. MASTER AND SERVANT.
To sustain judgment against employer for overloading employee, there must be competent factual evidence as to actual or apparent weight of load, or such other proof as is factual equivalent of direct proof.
17. MASTER AND SERVANT.
The testimony of employee and his witness that hardwood log which was 15 feet long and averaged about 12 inches in diameter was too heavy to be carried safely by six men was insufficient to sustain verdict for employee suing employer for injuries sustained while carrying log, in absence of evidence concerning apparent weight of log.
18. APPEAL AND ERROR.
In employee's action for injuries sustained when carrying a log, Supreme Court would reverse and render judgment for defendant rather than remand cause, where possibility of making any unbiased proof sufficient to prevail as against a peremptory instruction was remote.
APPEAL from the circuit court of Marion county; HON. J.C. SHIVERS, Judge.
Rawls Hathorn, of Columbia, for appellants.
Appellee failed to make out a case of liability against appellants, and failed to prove those allegations of his declaration necessary to prove in order to recover against appellants.
Appellee failed to prove that the log which he says he was required to carry was of such great weight that it could not be carried by six men with reasonable safety, and has left the jury without any kind of guide to determine the probable weight of the log, and thus required the jury to resort to conjecture, surmise or speculation in determining the probable weight of the log, which was a vital and controlling issue in the case.
Owen v. I.C.R.R. Co., 24 So. 900, 77 Miss. 142; I.C.R.R. v. Cathey, 12 So. 254, 70 Miss. 332; Tyson v. Utterback, 122 So. 498, 154 Miss. 381; Hercules Powder Co. v. Calcote, 138 So. 584, 161 Miss. 860; Y. M.V. v. Green, 147 So. 334, 167 Miss. 137; N.O. N.E.R.R. v. Holsomback, 151 So. 720, 168 Miss. 493; Columbus C. R. Co. v. Coleman, 160 So. 279, 172 Miss. 514; Patton v. T. P.R.R. Co., 179 U.S. 658; G.M. N.R.R. Co. v. Collins, 117 So. 595, 151 Miss. 240.
Appellee assumed the risk incident to the ground being uneven, wet, slippery and boggy.
39 C.J., page 704, par. 907, page 705, par. 908, page 709, par. 909, and page 726, par. 933; Y. M.V. v. Hullum, 80 So. 545, 119 Miss. 229; Austin v. M. O.R.R. Co., 99 So. 3, 134 Miss. 226; G.M. N.R.R. Co. v. Collins, 117 So. 595, 151 Miss. 240.
Appellee assumed the hazard or risk incident to the changing conditions, especially as to condition of place where he was required to work.
39 C.J. 710, par. 912; Cybur Lbr. Co. v. Erkhart, 79 So. 235, 118 Miss. 401.
Appellee not only failed to prove actionable negligence on the part of the master, but the testimony of his witnesses shows that his alleged injury was caused by the negligence of his fellow servants.
Appellee failed to offer proof that the log in question was too heavy for six men to carry with reasonable safety, and since the weight of the log could have been shown with reasonable certainty and was not so shown the presumption is that this evidence would have been detrimental to his cause.
Masonite Corp. v. Hill, 154 So. 295, 170 Miss. 158; 22 C.J. 115, par. 55; 23 C.J. 40, par. 1784.
Appellee has failed to prove by reasonably believable evidence what caused the three men in front to drop their end of the log or let it down to the ground
The undisputed testimony is that appellee and his co-workers were furnished with sticks or poles with which to carry or move logs and heavy timbers on the right of way, and that appellee and his co-workers selected the dangerous method of carrying the log with their hands rather than the safe way of carrying it with sticks or poles.
Favre v. L. N.R.R. Co., 179 So. 329; Stokes v. Adam-Newell Lbr. Co., 118 So. 441, 151 Miss. 711.
The overwhelming weight of the evidence shows appellants were not guilty of negligence proximately causing appellee's alleged injuries; appellee's cause is not supported by reasonably believable evidence; the jury had to resort to surmise, conjecture and speculation in order to determine the probable weight of the log, and the reason for the three men at the front end of the log letting it down or dropping it.
Williams Yellow Pine Co. v. Henley, 125 So. 152, 155 Miss. 893; Great Atlantic Pacific Tea Co. v. Davis, 171 So. 550; Brown v. State, 121 So. 297, 153 Miss. 737; Byrd v. State, 123 So. 867, 154 Miss. 742.
Henry Mounger and Hall Hall, all of Columbia, for appellee.
The question before the jury was whether the log was too heavy for six men to carry with reasonable safety, under the proven circumstances.
Natural Gas Engineering Corp. v. Bazor, 137 So. 788; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; 39 C.J. 1092.
Appellee did not assume the risk incident to carrying the log under the circumstances confronting him.
Sec. 513, Code of 1930; Gow Co., Inc. v. Hunter, 175 Miss. 896, 168 So. 264; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 475; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Goodyear Yellow Pine Co. v. Mitchell, 168 Miss. 152, 149 So. 792; Everett Hardware Co. v. Shaw, 178 Miss. 476, 172 So. 337; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Pearl River Valley R. Co. v. Moody, 178 Miss. 1, 171 So. 769; 39 C.J. 689; St. Louis S.F.R. Co. v. Guin, 109 Miss. 187, 68 So. 78; Austin v. M. O.R.R. Co., 134 Miss. 226, 99 So. 3; Y. M.V.R. Co. v. Dees, 121 Miss. 439, 83 So. 613.
Appellee did not assume the hazard incident to his place of work.
Cybur Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235.
Appellee's injury was not caused by the negligence of his fellow servants.
Scott Burr Stores Corp. v. Morrow, 180 So. 741; Currie Turner Const. Co. v. Bryan, 185 So. 256; Jefferson v. Virginia-Carolina Chemical Co., 185 So. 230; Gulf Refining Co. v. Ferrell, 165 Miss. 296, 147 So. 476; Section 512, Code of 1930.
Appellee's injuries were not due to unavoidable accident.
Appellee's proof as to the cause of the accident abundantly supports the finding of the jury.
Appellee did not adopt an unsafe means of carrying the log, but acted under order of his foreman.
Hardy v. Turner-Farmer-Love Co., 101 So. 489, 136 Miss. 355.
The overwhelming weight of the evidence is not against appellee's case.
3 Am. Jur., Appeal and Error, sec. 246; Flynn v. Kurn, 184 So. 161; Standard Oil Co. v. Franks, 187 Miss. 282, 149 So. 798; Watson v. Holiman, 169 Miss. 585, 153 So. 669; Standard Coffee Co. v. Carr, 171 Miss. 714, 157 So. 685; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257; Section 568, Code of 1930.
Appellee recovered judgment in an action of tort against appellants on the allegation that appellee and five co-workers, employes of appellants, were ordered by appellants, over the protest of appellee, to carry a hardwood log over rough, uneven and slippery ground, it being averred by appellee that the log was too heavy to be safely carried by six men over such ground, and that appellants should have known this on the exercise of reasonable care.
In considering this complaint of appellee, that the log which he and his five fellow workers were required, by concerted action, to carry was too heavy for six men, we are at once confronted with the point made by appellants and with the fact that there is no sufficient evidence in the record of the weight, actual or approximate, of the said burden. How, then, was the jury to say, of their own independent judgment, whether it was too heavy? The only fact in this record from which a conclusion may be reached as to the weight of the log is its size, to-wit, that it was about 15 feet long and of an average diameter of about 12 inches, and that it was hardwood log, — but of what species is not shown.
And if it be argued that, because the county in which the case was tried is one abounding in timber growth, jurors from their common observation may estimate the approximate weight from the above data, this would be to say that it is a matter of which common or judicial knowledge may be taken.
It is true that a jury has the right to take into consideration all that knowledge which is common to the average man and springs from the ordinary relations and experiences of life, and in their adjudications may use and apply their own knowledge and observation as regards such ordinary experiences and relations; but their province, in respect to the knowledge of facts which they may thus judicially notice and act upon, without record evidence of the particular facts, is no broader than that of the judge on the bench, who has the power and duty of supervision and review over jury verdicts. 1 Jones, Com. on Evidence (2 Ed.), secs. 471, 472; 5 Wigmore on Evidence (2 Ed.), sec. 2570.
If, then, the weight of a hardwood log of a given size and of a certain species is within the common knowledge of the jury, it is at the same time and as fully a matter of which the presiding judge could take judicial knowledge, and hence of which we here may know judicially, and, therefore, may resort for actual knowledge of it to any such informative source as the court may deem dependable. Witherspoon v. State, 138 Miss. 310, 320, 103 So. 134; Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691, 697; 1 Jones, Com. on Evidence (2 Ed.), sec. 469; 7 Ency. Ev., p. 1031.
So doing, we could turn to Scribner's Lumber and Log Book, a book mentioned in our statutes, section 7358, Code 1930, and there we would find that the approximate weight of a hardwood log of the length and diameter above mentioned is given as 328 pounds for poplar, the lightest, to 538 pounds for beech, the heaviest dealt with therein, and that the average for all species is 438; and looking further to common knowledge, we could with perfect confidence say, and a jury of reasonable and impartial men would be bound to say, that a log weighing 438 pounds or 538 pounds is not too heavy a burden for six workmen of normal strength. This would be only seventy-three pounds or eighty-nine pounds each; and a workman in good health who could not carry that much load has no business in offering to work at all, in such an employment as was involved here. In presenting himself for such work, taking wages therefor, and making no complaint of any physical incapacity, he represents himself as capable of carrying much more than any such a load as 73 pounds or 89 pounds, and he will not be heard to assert otherwise. And we do not overlook the fact that the work was being done on soft and uneven ground.
If, therefore, common knowledge or judicial knowledge could be applied here, we would simply say, without further discussion than the above, that appellee has no maintainable cause of action. But the weight of timber or logs is not a matter of common knowledge, 1 Jones, Com. on Evidence (2 Ed.), sec. 429; 23 C.J., pp. 168-169, sec. 1998; except, of course, the knowledge that it has considerable weight, and that the weight varies according to the species or class of the log or timber in question. The weight or the approximate weight of a log of a given size and length, and particular species, when, as here, the log is no longer in existence, must be shown by the testimony of a witness or witnesses who have had such special experience in that field as will make their opinion or estimate of distinct value beyond that which might happen to be entertained by a man of no such experience. This is the necessary result of saying that it is not a matter of common knowledge.
Testimony, such as above mentioned, would have been available in this case without any serious difficulty; but none was produced, and no witness gave any estimate of the weight of this log. It was left wholly to the conjecture of, or guess by, the jury, except that appellee and one of his witnesses said that the log was too heavy to be carried by six men. And thus there is sharply presented, and for the first time in these lifting or overloading cases, the question whether the statement of a witness or witnesses that a load was too heavy to safely carry is sufficient in probative force to sustain a verdict, without the weight or the approximate weight of facts of equivalent probative value having been shown in the evidence.
We suppose that if the size of the log had not been given in evidence at all, so that the jury would not have known but that it may have been only six feet long and six inches in diameter, all would admit that the mere assertion, the ipse dixit, of the witness or witnesses that it was too heavy to be carried by six men, would not be a sufficient foundation for a verdict of liability. What of sufficient substance has there been added by the evidence here that the log was a hardwood log twelve inches in diameter fifteen feet long? This still does not give the weight or the approximate weight of the log; it is not a matter of which the jury may take common or judicial notice; and, as already pointed out, this weight may have been only 438 pounds, according to the average given in the logbook tables.
Whether a burden is too heavy to be carried by six men was for the jury to say upon the basis of evidentiary facts, not for the witness to get in the jurybox and decide that question. What approximately did the log weigh? We repeat that so far as the evidence shows it may have weighed only 438 pounds; and so far as the record discloses the two witnesses who said it was too heavy may have thought that 438 pounds was too heavy for six men, when that decision was one for the jury and not for the witness. Thus there would be in such an assertion by a witness or witnesses, an admixture of opinion and conclusion, but there is a vital difference between evidentiary opinion and juridical conclusion, however difficult it may sometimes be to locate the boundary between the two.
The point is, then, that when, without substantially more, a witness says a burden was too heavy, this proves nothing of what, in fact, it weighed or approximately weighed, and presents nothing to the jury to act upon except the declaration of the witness as to what the jury should conclude or how the jury should act. If this were sufficient in the judicial forum, the jury could be dispensed with and the witness would be allowed to adjudge the case without the interposition of the jury.
It will be found upon opening the books on the subject of Opinion Evidence that the discussion proceeds at once to the point that courts will not allow an invasion of the province of the jury by permitting the opinion of a witness or witnesses to be substituted as and for the conclusion of the jury as respects the ultimate fact in issue, — the only exception being one arising out of the absolute necessity that no better evidence than such an opinion in the form in which it is presented is attainable; but there is no such necessity in a case such as we have here. As has been tersely said: "The verdict should express the jury's own independent conclusion from the facts and circumstances in evidence, and not be the echo of the opinions of witnesses, perhaps not unbiased." Hames v. Brownlee, 63 Ala. 277, 278. Or, as expressed in Foster v. State, 70 Miss. 755, 763, 12 So. 822, it is not for one man or two men "to draw the conclusion and form the opinion when twelve had been selected and sworn to do that very thing." 22 C.J., pp. 498-514, secs. 596-600; 5 Ency. Ev., pp. 526-528.
And since it is the exclusive province of the jury to adjudge the ultimate fact in issue, and since the litigants on both sides have the absolute right to an adjudication by the jury of the ultimate fact and not by adverse witnesses, it becomes the duty of courts, in considering whether verdicts are sufficiently sustained, to avoid the danger of a substitution of the conclusion of a witness or witnesses for that of the jury by requiring, in respect to the facts upon which the jury is to arrive at its conclusion, the best reasonably attainable evidence of those facts. The best-evidence rule is a cardinal or fundamental principle of all our judicial procedure. The log here in question being no longer in existence, as the record would indicate, the best attainable evidence of its weight would be to give its size, which was done here, and the species of timber to which it belonged, which was not done here, and then call to the stand men of experience and special training in the handling of timber, including the kind in question, and place before the jury their estimates of the weight or approximate weight, in which connection for examination and cross-examination commonly recognized and customarily used books or tables on such weights might be considered, so that thereby and thus aided the jury could have the most dependable available method of arriving at the weight, and having so done, then they would be in a position upon their own independent judgment to say upon the ultimate issue whether that weight was too great for the number of men assigned to it.
But what have we here? Only the assertion of two witnesses that the log was too heavy to be carried by six men, and even then it is not shown what experience these two witnesses had had in judging such weights. And we repeat that the ultimate issue as to whether it was too heavy was for the jury. Could there be a balder, a more obvious illustration of substituting the conclusion of a witness in the place and stead of that of the jury and that here presented? And it would be a substitution without the slightest necessity therefor, as we have already shown, and in the teeth of the best-evidence rule. If we were to sustain this verdict, all that a plaintiff in one of these lifting cases would have to show would be his own assertion or declaration that the burden was too heavy, and with this done, then enter up a judgment for him. It would mean that if a matter of distance were in ultimate issue, it would be sufficient if a witness merely said it was too far, or if of speed that it was too great, or if of value that it was too much, or if of time that it was too long. This would be judicature gone wild.
Moreover, in the present case, the assertion of the two witnesses that the load was too heavy for six men is infected with the ambiguity that it may have meant that the burden was too heavy for six men carrying it by hand, as was done here, and not inclusive of the meaning that it was too heavy to be safely carried by the use of sticks, — there being no evidence that the crew was given any directions as to the method to be used in carrying the log, or definitely as to the customary method theretofore followed in the course of that particular work, although there is some evidence that earlier on that day sticks were being used in moving the only other log that was shown to have been moved at all.
It is true that in two or three of the cases hereinafter cited, and wherein the record contained evidence of the actual weight, or competent estimates of the approximate weight, the witness has been allowed to state that the burden was too heavy for him, or in concert with his fellow workers, to carry; but it has never been said that this assertion alone and in the absence of the other evidence as to weight, above mentioned, is sufficient to sustain a verdict. Certainly, no support by analytical discussion is needed of the proposition that in aspects too numerous to mention, certain testimony is admissible for what it is worth, yet of itself is not worth enough to make out a case. Hundreds of reported decisions might be pointed to in demonstration of this procedural principle. Among the more recent, the case of Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80, may be selected. There a witness was properly allowed to testify as to his estimate of a short space of time. The verdict depended upon the acceptance of that estimate. The court held, however, that it was not sufficiently dependable and substantial to form the foundation of a verdict.
All this gets us back to the proposition that before a judgment can be sustained against an employer for overloading a servant, it must be shown by competent, factual evidence, what was the weight of that load, either actual or approximate, or there must be such other proof as will be the factual equivalent of direct proof. That the bar and the courts have so understood is strikingly illustrated by the cases involving this subject as follows: Gulf etc. R. Co. v. Nutt, 120 Miss. 93, 81 So. 642; Jefferson v. Denkmann Lumber Co., 167 Miss. 246, 148 So. 237; Goodyear v. Mitchell, 168 Miss. 152, 149 So. 792, 150 So. 810; Gow Co. v. Hunter, 175 Miss. 896, 168 So. 264; Cobb Bros. etc. Co. v. Campbell, 176 Miss. 695, 170 So. 283; Pearl etc. R. Co. v. Moody, 178 Miss. 1, 171 So. 769; Gaines v. Strickland, 178 Miss. 308, 170 So. 695; Everett etc. Co. v. Shaw, 178 Miss. 476, 172 So. 337, 173 So. 411; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800. In every one of these cases the actual weight or the approximate estimated weight was given in evidence, — as shown either in the opinions or when turning to the records of those cases now remaining on file with the clerk of this court.
In only one case to which our attention has been directed, has the evidence failed to give the weight or approximately estimated weight, and this was in Natural Gas etc., Corp. v. Bazor (Miss.), 137 So. 788; but it was shown by the record on file in that case that two men were required, over their protest, to carry a log eight inches in diameter, twelve to fourteen feet long, in the nighttime, over ground full of stump holes, without a light, when customarily, and theretofore always four men had been assigned to that task, and even then by the use of sticks.
When two men, and who being only two cannot use sticks, are ordered, over their protest, to a task to which there had always theretofore been allowed four men using sticks, this was considered enough to hold the employer, especially under the particular circumstances of that case. When always a task has been considered a four-man task, and always theretofore four men have been assigned to it, using sticks, this is in effect an admission by the employer, sufficient to take the issue to the jury, that the load is unreasonably excessive for two men who must necessarily work without sticks and who are driven to it against their protest. But that is not the case here; there is no showing that the work involved here was ever considered anything more than a six-man task, and six men were here assigned to it.
We have considered, however, whether, in view of the case last mentioned and the possibility that counsel for appellee may have been induced by it to suppose that proof of the weight or approximate weight was not necessary, we should remand this cause rather than enter judgment here upon appellants' request in the trial court for a peremptory instruction. We have concluded that the differentiation between the case and the present case is so obvious, and that the possibility of making any unbiased proof of the weight substantially different from that shown in the lumber and log-book tables is so remote, that we would not be justified in taking here any other than the ordinary course where a peremptory instruction was proper on the record as it presently exists.
Reversed, and judgment here for appellant.