
    (33 Misc. Rep. 87.)
    GALLIGAN v. METROPOLITAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    November 27, 1900.)
    1. Street Railroads—Collisions—Negligence.
    Where plaintiff was injured by collision of a fire engine, on the tender of which he was riding, and a street car, the negligence of the driver of the engine cannot be imputed to him.
    2. Same—Opinion Evidence—Questions for Jury.
    In an action for damages sustained by collision between a fire engine, on the tender of which plaintiff was riding, and a street car, a witness cannot express an opinion as to whether the car or the tender could have first crossed the point of intersection; that being a question for the jury.
    Appeal from city court of New York, general term.
    Action by John F. Galligan against the Metropolitan Street-Bail-way Company for injuries sustained by collision between a fire engine, on the tender of which plaintiff was riding, and defendant’s car. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial (66 N. Y. Supp. 1131), it appeals.
    Reversed.
    Argued before BEEKMAN", P. J., and GIEGERI'CH and O’GORMAN, JJ.
    Henry A. Robinson, for appellant.
    Philip J. Britt, for respondent.
   O’GORMAN, J.

The instruction to the jury that the negligence of the driver of the engine might be imputed to the plaintiff was erroneous (Lewin v. Railroad Co., 41 App. Div. 89, 58 N. Y. Supp. 113); but, as the defendant could not be harmed thereby, it need not receive further consideration. The judgment must be reversed, however, for error committed in allowing the witness Nott to express an opinion as to whether the defendant’s car or the tender could have first crossed the point of intersection where the collision occurred. This bore directly upon the vital question in the case, and was not a subject requiring or permitting the expression of expert skill or knowledge. Dougherty v. Milliken, 163 N. Y. 527, 57 N. E. 757. The respondent admits that there was a sharp conflict in the evidence, and/ under the circumstances, we think that the admission of this testimony, over defendant’s objection and exception, was prejudicial. The witness was thereby permitted to encroach upon the province of the jury, and, being an eyewitness of the occurrence, his opinion, improperly received, may have unduly impressed the jury in deciding the issues in controversy.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.  