
    Peter Flanagan, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 18, 1895.)
    Evidence—Experts.
    The question as to whether the gates at a station can he operated in a-safe manner and with safety to the operator, is one for the jury, and is not the subject of expert testimony.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.
    
      Frederic B. Jennings, for app’lt; Frederick T. Hill, for resp’t.
   Parker, J.

We think this judgment must be reversed, because the court received, against the defendant’s objection and exception, the opinions of alleged experts upon the leading issue to be determined by the jury, in violation of the rule that, to make such evidence proper, the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge, which exists 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 a full understanding of it.

Plaintiff entered the employment of the defendant on the 18th of December, 1890, to act in the capacity of gateman at the Grove street crossing, Jersey City. Grove street is crossed by five tracks of the defendant, running parallel with one another, and at right angles to Grove street. For the protection of the public at that crossing, gate poles, capable of being raised and lowered, were situated on either side of the crossing. They were raised or lowered by means of handles projecting from upright posts located between tracks Nos. 3 and 4. At these posts the plaintiff, as gateman, was stationed at the time of the injury, which was about half-past 4 on the morning of December 21st,—three days after his employment. At that time he observed a milk train, of 20 or more cars, running at the rate of about 12 miles an hour, going -west on track No. 3 ; and he commenced to lower the gates, turning the handles of the east post first, and then the handle of the -west one. The gates being lowered, he stood one side of the posts, as he had been instructed to do, with his left hand on the handle of the left post, and facing track No. 3. This position he took as the milk train was about reaching him, and, according to his testimony, he remained in that position, neither turning nor stepping forward or backward, when suddenly, and before the milk train had passed-, and without any previous warning, he felt a sudden blow on the back of his head ; and he fell forward upon one of the rails of track No. 3, under .the moving cars of the milk train, his left arm being crushed beneath the wheels, necessitating amputation. At the time of the accident, an engine, without any cars attached, was going west on track No. 4 ; and, according to the testimony of the men on it, it was opposite the eighth car on the milk train, which was running somewhat faster than the engine. It is the claim of the plaintiff that he was struck by some part of the light engine, and the evidence is of such a character as to warrant the finding that such was the fact. He contends that the defendants failed to discharge its duty towards him, as an employe,-in that it did not use reasonable care and prudence in providing a safe place in. which to do the work assigned him. The facts, other than those already referred to, offered for the pur* pose of establishing his contention, are that the entire space between tracks Nos. 3 and 4, where plaintiff was stationed at the post, was 8 feet 3 5-8 inches, and the distance between the handles projecting from the posts and track No. 4, upon which the light ■engine ran, was 3 feet 4 3-8 inches, and the overlap of freight ■cars, on a standard guage road, is from 1 foot 9 inches to 2 feet, and of engines about the same. The engine that struck him belonged to the heaviest .class, and had an overlap of 2 feet, thus leaving an average space of 16 3-8 inches between plaintiff and the engine passing at his back. A witness with considerable railroad experience testified to the effect of rapidly passing trains upon a person in close proximity, and unaccustomed to the sensa-' tian. Another witness suggested that a gate man would be more secure if he should push himself between the posts after the gates had been lowered; but there was some evidence that this only could be done when the handles happened to be hanging exactly ■right, which was not always the case. Maps descriptive of the locus in quo, and photographs were put in evidence, together with testimony to the effect that, it was entirely feasible to have provided a place for a gateman to raise and lower the gates, entirely «outside of the railroad tracks.

We have thus called attention to some of the leading facts bearing upon the question whether the defendant had omitted to discharge the duty resting upon it, of using proper care and caution in providing a reasonably safe place for the employe to work. And we think the evidence was of such a character as to present a question for the jury. But the plaintiff, after proving the facts, was not content to permit the jury, in accordance with the long«stablished rule, to determine from them whether or not the defendant had discharged the duty which it owed to the plaintiff, and he undertook to have that question determined for them by the opinion of experts. This was attempted to be done by means of hypothetical questions, which assumed the existence of the facts to which we have referred, and concluded, “Would you consider that these gates could be operated in a safe manner, and with safety to the operator ?” This question was for the jury, and the plaintiff was not entitled to have it determined for them by experts. Harley v. Buffalo Gar Manufacturing Co., 142 N. Y. 31; 58 St. Rep. 437 ; Schneider v. Second Ave. Railroad Co., 133 N. Y. 583 ; 44 St. Rep. 680; Roberts v. N. Y. E. Railroad Co., 128 N. Y. 455; 40 St. Rep. 454; Van Wycklen v. City of Brooklyn, 118 N. Y. 424 ; 29 St. Rep. 790. The ruling of the court in receiving the evidence against the objection and exception of the defendant -constitutes error, for which the judgment must be reversed. Judgment reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.  