
    George Gerbig, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    1. Master and servant — Negligence—Evidence.
    In an action for injuries to a servant while loading coal from a bin by the giving way of the partition, where it is shown that the timber, hemlock, of which it was constructed, was commonly used for that purpose, it is error to permit a question calling for the opinion of a witness as to whether hemlock was a proper material for that purpose.
    2. Same.
    So, also, as to whether the braces or anchors were sufficient to hold the crib-work.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    
      Lewis E. Carr, for app’lt; Arthur S. Tompkins, for resp’t.
   Barnard, P. J.

The plaintiff on the 27th day of November, 1891, was injured by the giving away of a partition by which a great mass of coal was thrown upon him. He was an employe of the defendant and was loading coal from a bin on the pier at Piermont. After the coal in the bin in which he was working had been partially removed, the partition between this bin and the next one east gave away, causing the accident. The partition was constructed with hemlock timber. The partition and bins were constructed in the usual way and there was no objection that the accident was caused by an unsafe or faulty plan. Proof was given tending to show that the timber, hemlock, was such as is commonly used for that purpose. Under this state of the evidence it was improper to permit this question:

“ Yon have made cribs or bins or partitions to hold quantities of coal, fifty or a hundred times. Is hemlock a proper material for that purpose ? The question was objected to and admitted under defendant’s exception. The answer was as follows. Well, it depends altogether on how you use it. If you use hemlock alone it is not worth much ; but where I have built bins, we take posts of chestnut and then board them up ; well, the posts hold certainly; the hemlock is just to keep the coal from running in through the posts.
“Would the hemlock alone be sufficient to support? Same objection and ruling and exception as before.
“ No, it would not.”

It was error to permit the question of the sufficiency of the anchors. It was proven that braces of timber were connected with the partition and run into the next bin so that the weight of the coal in that bin, when it was filled, would hold, by means of these braces or anchors to the partition; the coal being filled in these braces and holding them by its weight. A question was received under defendant’s exceptions that they were not sufficient to hold the crib work. ^ The court of appeals in a recent case has examined the admissibility of such testimonv in the case of Roberts v. N. Y. Elevated R. R. Co., 128 N. Y., 455; 40 St. Rep., 454. Under that case these questions were not proper as exceptions to the general rule of evidence that testimonv should consist of facts and not opinions; that whenever opinions are admitted it is in cases where the facts are not descriptive, and cannot intelligently be communicated to others. Van Wycklen v. City of Brooklyn, 118 N. Y., 424; 29 St. Rep., 790.

It is not, therefore, necessary to examine the question whether the proof established a case of negligence on the part of the defendant under all the proof as it was given, and assuming this evidence to have been properly received; a new trial may change it

The judgment and order denying new trial should be reversed and a new trial granted, costs to abide event Dykman and Pratt, JJ., concur.  