ÆäÀÌÁö À̹ÌÁö
PDF
ePub

It is true of a

employ engineers in connection with their contract work. considerable part of such work that the engineer is responsible only for the ultimate design, and the contractor for the execution. The complete success of the work depends commonly as much, and frequently more, upon the contractor's employment of methods and processes of handling the work than upon the design. Both engineer and contractor are necessary to the work, and the best results come when the two are working in harmony.

Honesty and Fairness. Most contractors are honorable and most engineers are fair. Some contractors have at times attempted to scamp their work and to employ sharp practices to profit at the expense of the railroad or city, and some of the drastic provisions found in some modern contracts have been introduced after an experience which suggested such a remedy. Young engineers often err in zeal for their clients and older engineers are human enough to shrink from involving their clients in expense due to lack of foresight or to some lapse on their part. Contractors have frequently shouldered some slight loss rather than subject the engineer to mortification of this sort. In general, however, both contractors and engineers want to do the right thing.

Starting fresh on a new project, the assumption should be that the contractor is honorable and that the engineer is fair. It is nevertheless the duty of the engineer to use methods adapted to secure good work for his client. Experience has established the necessity for systematic inspection so that work not up to standard shall not be accepted, whether the defect be due to lack of skill or care, or to the undue zeal of some foreman who is selected mainly for his ability to advance his employer's interests by pushing work, a quality which may naturally lead to occasional neglect in the quality of performance.

Engineer's Duty to Contractor. It is the engineer's duty to control the work and the contract should secure to him the necessary authority; his decision should be final certainly as to quantity and quality of work. His position as to such matters is, however, substantially that of an arbitrator or umpire, irrespective of who employs or pays him. The engineer engaged in construction work may feel that he represents more directly his employer in securing the proper quality of work; but in estimating quantities, measurements are seldom sufficient and complete enough to assure perfect results, and in making enough of them only to secure results substantially correct, it seems both moral and legal that the quantities shall be certainly fair to the contractor; where additional measurements are dispensed with, it is to save cost to the employer. Further than this it seems that the contractor has a clear legal as well as a moral right to stakes, facilities, and information, both in time and form, such as to give

him the most favorable opportunity reasonable to profitably and successfully carry on and complete his work.

Friendly Relations. The engineer and contractor should properly be on friendly terms. Under present conditions, however, it may be misunderstood if the relations are exceptionally cordial. The acceptance by the engineer of favors on a large scale from the contractor may suggest illegal relations and should be avoided. A contractor often offers to the engineer a cigar, or at the close of a contract a box of cigars, and without ill intent. One engineer preferred to offer the contractor as many cigars as came the other way, but without accurate count. The contractor seemed not in a position to refuse the cigars offered. Correct relations in this case were naturally suggested, and thoroughly friendly relations were maintained with no discoverable loss of self respect on either side.

THE ENGINEER AS AN EXPERT

Functions of Expert. The engineer as an expert may be employed in various capacities, not all of them in connection with legal controversies, but in cases not directly involving design or construction work on his part. He may be consulted where an investigation of values or costs is desired, or where the merits of some development of natural resources is in question, as well as upon business matters where an analytical treatment of a subject is required.

In legal controversies he may be consulted, even before a suit is instituted, as to the bearing of technical questions involved; he may assist in the preparation of the case; at the trial he may assist the lawyer in the examination of witnesses; or he may serve as an expert witness.

Investigation to Precede Opinion. Before committing himself, when consulted, the engineer should satisfy himself as to the controlling facts and should make such investigation as seems necessary. In some cases his client's statement of facts may be inexact, incomplete, or inexpert, to the extent of being misleading. The engineer should not be quick to advise without a proper investigation and should stand ready to advise against his client's bias if such advice is wise. In some cases it is his duty to advise a conference or arbitration rather than a suit.

Ethics. In many legal controversies, both parties are honest but a difference of opinion exists as to the bearing of the law or of scientific principles upon the case. Some conscientious lawyers refuse to prosecute a case unless fully satisfied of its justice, but will defend any suit, and see that the client's interests are adequately protected. An engineer may take a similar position. If his client is liable to suffer injury unless well advised, the engineer may properly act to protect any rights his client

has. He should, however, not hesitate to inform his client as to the hopelessness or injustice of his case and should stand ready to withdraw if that appears to have become his duty.

An engineer sometimes declines to go upon the stand because crossexamination is likely to bring out some weakness in his client's case, and yet he may feel free to advise the lawyer in court in order to establish a serious weakness in the opponent's case. A man with high standards will act or refuse to act as seems to him right. A man with low standards will not be guided by anything written here.

Opinions. With relation to his work as an expert witness it has been stated in a previous chapter that, in general, witnesses may not state opinions except in the case of experts. Engineers often serve as experts and thus may express opinions. Expert opinion is allowable when the subject matter has the nature of a science or trade, which requires study or experience, or both, to understand it, so that persons inexperienced in the art or science who constitute the jury are likely to be left in doubt after all the facts are proved, unless aided by expert opinion. Whether such expert opinion may be introduced rests with the judge. The jury may or may not be convinced by it, but will give to it such weight as they see fit and decide upon questions of fact accordingly.

Qualifying. The expert must "qualify." He must state the skill, knowledge, or experience he possesses, which as a rule he has gained in his trade, profession, or calling. In some cases he is qualified by study or scientific research rather than by direct experience. Teachers of natural sciences have often been experts by virtue of their study.

Who are Experts. Locomotive engineers may be experts on many matters in the running of trains, as may also railroad conductors, brakemen, and others upon points with which they are familiar. Civil engineers or mechanical engineers who have made themselves familiar with the theory of brake resistances and know what practical results have been reached, are competent to testify as to the distance in which a given train could be stopped. This, however, is not strictly opinion evidence, certainly if the distance is stated within limits and not exactly.

Cross-Examination on Qualifications. Cross-examination of the expert as to qualifications is to be expected, and a favorite scheme is to ask the witness if he is expert upon some very narrow line of the field. A witness who well understood all about chains was asked if he was an expert on "foundry chains," a chain in a foundry being in question. Not having given especial attention to any chain used in a foundry, and having a fine conscience, he said "no" and was promptly excused. He should have stated that he thoroughly understood chains and foundry chains were chains, and could then, if pushed, answer "yes." The

engineer should consider carefully what he will state as his qualifications, and weigh carefully his answers in cross-examination as to these.

Court Decides on Qualifications. The court is the sole judge of the qualifications of a witness as an expert, that is as to whether he shall be allowed to testify as an expert. The jury, however, is the sole judge as to the weight or credit to be given to his testimony as to opinions, or as to scientific facts or principles propounded by an expert.

Opinions in Disfavor. Opinion evidence is in considerable disfavor. It seems possible, in many important cases, to obtain the opinions of experts in support of either side, and often diametrically opposed to each other. Medical men and handwriting experts often disagree, as do also engineers.

Scientific Facts or Principles. The evidence of engineering experts, to a large extent, is not "opinion" evidence. Quite largely the evidence is a statement of scientific facts or principles which apply to the case in hand. The function of the engineer, more often than not, is to discover and correlate the scientific principles and facts which apply, and to arrange them in such simple and clear form as to convince the jury. None but an expert could so present them and establish their bearing.

Measure of Value of Evidence. An attorney stated to a witness in his first expert case that "the value of your evidence will depend upon its soundness and the reasons you present to support it." The evidence was as to values to various parties of an improvement determined upon. These were established from statistical data, and by logical deductions from them. From these the commissioners who heard the case were able to draw conclusions without attaching much, if any, importance to the quality of the witness as an expert. The facts presented were what counted. Except by an expert, these facts would not have been presented.

Expert but not Opinion. A statement by a surveyor or engineer as to the amount of land which would be flowed at a given height of water may be expert, but certainly is not opinion evidence if the proper measurements and computations have been made. The statement is one of a scientific fact.

A competent civil or a mechanical engineer may express an opinion of the cause of an accident, but his testimony is far more convincing if he recites facts within his knowledge which lead him to the opinion he expresses. If the facts lead the jury to the same result, his opinion is a negligible part of the case.

Subordinate Opinions. So far as possible the engineer should arrange his evidence in such form that his personal opinion is not the deciding element. His judgment or opinion may determine what scientific facts or theories are to be applied in any case in hand, but any initiative of such

sort may still leave the jury to accept the theory on its merits rather than as the engineer's opinion purely.

Values. Statements as to values, or as to the probable effect of certain constructions, may be purely opinions. They may often be the logical result of scientific facts recited by the experts. Values of public utilities. are often fixed by earnings or costs, or both combined, and a jury, with the facts suitably presented, often becomes capable of forming a correct judgment from these facts.

Attitude as Witness. When upon the witness stand, the answers of the expert witness should appear to be clear, frank, fair, and free from bias. They should also be so framed, if possible, that the inexpert jury may understand them. There may be cases where a juror's respect for expert testimony will be in proportion to his inability to understand such superior wisdom, but it will not do to count on this with twelve hardheaded men. Before a commission, clearness is equally desirable.

Cross-Examination. Under cross-examination, ordinary witnesses are sometimes asked if they had a "rehearsal " with their attorney. Such a question would rarely be asked of an expert, and a statement that a consultation was necessarily had would not prejudice the case. A witness under cross-examination should keep cool, consider well his answers, should not be driven into a show of anger, should not attempt to be smart," and should avoid the appearance of bias even under crossexamination.

66

[ocr errors]
[ocr errors]

Yes or No. An answer yes or "no may be demanded and in most cases must be given. Where either answer would convey the wrong impression, the witness may sometimes ask the protection of the court against answering either way. He may sometimes answer yes and no if this is appropriate and let the opposing lawyer ask an explanation if he wants to do so. An illustration of a question to which an answer "yes" or "no" is misleading is: “Have you quit your habit of beating your wife?"

Testing Expert's Knowledge. The cross-examination may seek to discredit the expert, and general questions not directly applicable to the case may properly be asked to determine his qualifications. Questions requiring computations need not be answered off-hand, but a willingness to compute and testify later may be appropriate. It happens, in rare cases, that an engineer states the results of a computation and later discovers an error; a return to the stand to correct the error is the proper course, and probably will not injuriously affect other testimony given.

Refreshing Memory. Where extensive computations have been made, the witness may have memoranda with him and use them "to refresh his memory." It is a necessity in this case. An engineer may always use memoranda to refresh his memory. He may testify that he remembers

« ÀÌÀü°è¼Ó »