Opinion
7 Div. 952.
November 21, 1918. Rehearing Denied December 19, 1918.
Appeal from Circuit Court, Shelby County; Lum Duke, Judge.
R. H. Thach and Cabaniss Bowie, all of Birmingham, for appellant.
Longshore, Koenig Longshore, of Columbiana, for appellee.
It is most earnestly insisted by counsel for appellant that, the judgment appealed from should be reversed for the refusal of the court to grant a new trial on the ground that the verdict of the jury was contrary to the great weight of the evidence. There was sharp conflict in the evidence for the respective parties, the defendant insisting that the guide or guard box was not in proper condition, and that, therefore, the accident was the result of plaintiff's own negligence; while, on the other hand, the plaintiff contended that the rolls were not properly adjusted, and that the liner upon one end of the roll worked out, causing the space at one end to be greater than at the other, and the red hot iron bar (with an "overfill" of one-sixth of an inch), being forced through the rolls at a rapid speed, was deflected from a straight course and turned or curved in the direction of its smaller side. The issues thus resting upon these two theories seem to have been fairly and fully presented to the jury, resulting in a verdict for the plaintiff.
It is conceded that the rule in regard to disturbing the judgment of the lower court upon the question of motions for a new trial, so often quoted from the familiar case of Cobb v. Malone, 92 Ala. 630, 9 So. 738, has application in the instant case, where the evidence was had orally before the court. Hatfield v. Riley, 199 Ala. 388, 74 So. 380.
The able brief of counsel for appellant does not question this rule in ordinary cases. But they insist that this is not a case where the inference from the evidence is involved, but that their case is based on physical facts, as to which there can be no plausible controversy. It being insisted that, from the evidence of the plaintiff himself, viewed in the light of nature's unchanging laws, and the unvarying principles of mechanics, the plaintiff's theory as to the proximate cause of the injury is so entirely at variance with the physical laws as to demonstrate that it is entirely untrue, and that, therefore, the verdict is unjust and unsupported in law and fact, citing Elliott on Railroads (2d Ed.) § 1703; Wichita I. C. S. Co. v. Sheppard, 82 Kan. 509, 108 P. 819, 28 L.R.A. (N.S.) 648; Louisville Water Co. v. Lally, 168 Ky. 348, 182 S.W. 186, L.R.A. 1916D, 300; L. N. R. R. Co. v. Chambers, 165 Ky. 703, 178 S.W. 1041, Ann. Cas. 1917B, 471.
We are asked to hold, in effect, that it was physically impossible for this red hot iron bar, about one inch square, with an "overfill" on the edge of about one-sixth of an inch, to be deflected from its course, and caused to circle or curve by reason of such a defect in the rolls through which it was passing, as contended by appellee. The evidence tends to show that the bar was eight feet in length, red hot, and therefore soft, and was forced through the roll at a very rapid rate of speed. We have previously noted this particular bar, showing an "overfill." There was evidence also tending to show that the roll was tried out after the injury, and the bar curved to the left as did the one which injured the plaintiff, and, further, that when a liner was inserted the bar came out straight. We are of the opinion that this is a matter as to which the average layman is not, and cannot be, well informed. But, after a careful consideration of the evidence in this case, in the light of the elaborate brief of counsel for appellant, we are unwilling to hold that it is physically impossible for the accident to have been caused as contended for by the appellee. This is the sole basis upon which the appellant rests his right of reversal on the action of the court in denying a new trial.
It is insisted there was reversible error in permitting the plaintiff to give as his opinion that the bar was caused to curve to the left on account of the liner having worked out from under the roll. The lower court evidently concluded that the plaintiff had sufficiently qualified himself as an expert to give an opinion upon this particular subject.
"It is settled with us that the determination of the qualification vel non of a person to form and give an expert opinion on a definite subject is a preliminary matter; that its decision is addressed to the sound discretion of the trial court under the evidence bearing upon that preliminary inquiry. * * * Under the rule long prevailing here, the finding of the court upon the facts presented on that inquiry will not be held for error, unless the ruling is plainly erroneous." Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Alabama C. C. I. Co. v. Heald, 168 Ala. 626, 53 So. 162.
In Alabama C. C. I. Co. v. Heald, supra, it was held:
"To entitle a witness to answer as an expert, it is true 'he must, in the opinion of the court, have special acquaintance with the immediate line of inquiry; yet he need not be thoroughly acquainted with the differentia of the specific specialty under consideration. * * * A general knowledge of the department to which the specialty belongs would seem to be sufficient.' "
The plaintiff had been employed in this particular rolling mill for a period of two years, and as "rougher" at the roughing rolls for four or five months. The nature of his work is discussed in the statement of the case, as well also his duties in reference to assisting in lining up the rolls, and the keeping of the guard box in proper condition. During this period of time, he, of course, had had occasion to constantly observe the red hot bars as they went in and came out of the rolls, as they were constantly and rapidly handled by him.
We are clear to the view that the conclusion of the trial court as to his qualification as an expert upon this particular subject was not erroneous.
"The fact that an otherwise proper question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper. If the earlier cases cited in the brief for appellant conclude to the contrary, they are not in accord with more recent rulings." Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641, 64 So. 547.
We therefore conclude there was no error in permitting the witness to answer the question by giving his opinion of the cause of the deflection of the iron bar. A. C. L. R. R. Co. v. Enterprise Cotton Oil Co., 74 So. 232; Burnwell Coal Co. v. Setzer, supra; Pope v. State, 174 Ala. 63, 57 So. 245; So. Ry. Co. v. Stollenwerck, 166 Ala. 556, 52 So. 204; Stouts Mt. Coal Co. v. Tedder, 189 Ala. 637, 66 So. 619; Alabama C. C. I. Co. v. Heald, supra.
199 Ala. 57.
Moreover, the witness gave the facts or reasons upon which he based his conclusion. Under such circumstances, it was held by this court in Blackmon v. Cent. of Ga. Ry. Co., 185 Ala. 635, 64 So. 592, that the trial court will not be held in error because of the admission of such testimony, as the jury not only had his opinion, but also had the reasons and facts upon which the opinion was based. See, also, in this connection, Evans v. State, 120 Ala. 269, 25 So. 175; 17 Cyc. 60.
It results that we find no reversible error in the record, and the judgment appealed from will accordingly be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.