
    Maria L. Davis, Adm'rx, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Master and servant—Negligence—Evidence.
    In an action to recover for the death of a servant while shoveling coal in a bin caused by the giving way of a partition, the opinion of a witness as to the sufficiency of the braces or anchors to hold the crib-work is inadmissible. (Pratt, J , dissents.)
    
      (Gerbig v. W. T., L. E. &W. R. R. Go., 51 St. Rep., 534, followed.)
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial. Action to recover for the death of plaintiff’s intestate. The deceased was an employe of defendant and was engaged in shoveling coal in one of the bins, when the partition between the one he was in and the next one gave way, and the coal from that bin and the partition fell on him, causing his death. On the trial one of the witnesses was allowed to testify that anchors of the length used in this structure were insufficient.
    
      Lewis E. Carr, for app’lt; Frank Comesky, for resp’t.
   Barnard, P. J.

The death of the plaintiff’s intestate was occasioned by the same accident which occasioned the injury to George Gerbig, whose case was heard upon appeal in the court at the last December (1892) term. 51 St. Rep., 534. The questions put to the witness Ferguson, a civil engineer, calling for his opinion as to the safety of the crib which gave way and caused the accident, are similar, in principle, to the questions considered in the Gerbig case. It was therein held that the questions admitted assumed the functions of the jury upon questions of fact.

The judgment and order refusing a new trial should be reversed and a new trial granted, costs to abide event, oil the opinion in the Gerbig case.

Dykman, J., concurs.

Pratt, J. (dissenting).

This is an appeal from a judgment entered upon a verdict by a jury and from an order denying a motion for a new trial upon the minutes.

It is objected that a photograph of a portion of the bin where the accident did not take place was admitted in evidence.

It was admitted solely for the purpose of showing the plan of construction, and so qualified by the court. There was no dispute that it correctly showed the general plan of construction and in no way could mislead the jury or prejudice the defendant. McCarragher v. Rogers, 120 N. Y., 532; 31 St. Rep., 595, and cases tliere cited.

Neither do we think it was' error to admit the opinion of experts. The questions in issue were not subjects of general knowledge, but involved engineering skill and long practical experience to elucidate.

It has always been allowed to examine experts in mechanics, such as bridge building, the operation of all kinds of machinery; in fact, in almost every art and science.

The structure of these bins, the direction and amount of strain to be applied when used; the size, strength and durability of the material and the manner in which it was constructed, were subjects that could not well be placed before the minds of the jury by a mere description. It required peculiar knowledge and skill, and was the result of practical experience.

In Oties v. Cowles Electric S. & A. Co., 26 St. Rep., 869, the plaintiff was injured by the fall of a derrick, and the court held that it was competent to show bjr the evidence of experts what was a safe and proper way of erecting and supporting the mast.

The rule is well stated by Mr. Justice Brown, in Van Wychlen v. The City of Brooklyn, 118 N. Y., 424; 29 St. Rep., 790; “ That. upon which the opinion of witnesses may be given must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exist in reason rather than descriptive facts, and, therefore, cannot be intelligently communicated to others not familiar with the subject so as to possess them with full understanding of it:” Under this rule we think the evidence was properly admitted.

It may be said that all expert evidence, although given in the form of an opinion, is, nevertheless, this of facts which skill and experience have taught the expert always exist in connection with certain other facts.

Take the ordinary case of asking a physican or surgeon the cause of death where full history of the case is given. He answers in the form of an opinion, but it is, nevertheless, a fact which he knows from experience always follows the facts submitted in the particular case.

Such facts are known to the expert to the same degree, of certainty that a mathematician knows the result of a problem in mathematics.

Much stress is laid upon the contention that the evidence does not support the verdict. If it was the duty of the jury to believe all the testimony of defendant’s witnesses without qualification, and notwithstanding the other facts in the case, there may be some foundation for this contention, but it was the right of the jury to pass upon the whole evidence, and we cannot say the verdict is not fully sustained by the evidence.

Taking into consideration all the evidence, the jury were at liberty to find neglect of dtity on the part of defendant in several particulars, and they have done so, and the verdict must stand.'

Judgment affirmed, with costs.

Judgment reversed and new .trial granted, costs to abide event.  