
    James McLoughlin, as Administrator, etc., of Patrick McLoughlin, Deceased, Appellant, v. Duffney Brick Company, Respondent.
    Third Department,
    January 7, 1914.
    Master and servant — negligence—death of employee on hrick kiln—. evidence as to cause of death.
    Where, in an action for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant in failing to warn him of dangers connected with his work, it appeared that the intestate was found dead upon the top of a brick kiln not long after he had commenced work, and that the doctor who performed the autopsy swore that death was caused by asphyxiation, but on cross-examination stated that if the intestate had been found in the street under the same conditions he would have been of the opinion that death was caused by organic disease of the heart, it was error not to allow another doctor upon plaintiff’s examination to answer a hypothetical question as to his opinion of the cause of death.
    Appeal by the plaintiff, James McLoughlin, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 2d day of April, 1913, dismissing the complaint upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying plaintiff’s motion for a new trial made upon the minutes.
    
      
      John Scanlon, for the appellant.
    
      Neile F. Towner, for the respondent.
   Smith, P. J.:

The action was for damages for the death of plaintiff’s intestate, caused, as it was claimed, by the negligence of defendant in failing to warn plaintiff’s intestate, its employee, of dangers connected with his work. Four questions were submitted to the jury: The defendant’s negligence in failing to give such warning; whether the death was caused by such negligence; the absence of contributory negligence on the part of intestate, and his assumption of the risk of this work. The jury found a verdict of no cause of action, and from the judgment entered thereupon and from the order denying plaintiff’s motion for a new trial this appeal is taken.

I think the judgment and order must be reversed for an error of the trial judge in rejecting competent evidence.

The work of plaintiff’s intestate was daubing a brick kiln. He was found dead upon the top of the kiln not long after he had commenced work. The night before defendant had commenced burning coal under its kilns, and it was claimed that the fumes from the coal caused the death of plaintiff’s intestate. Dr. G-arvott, who performed the autopsy, swore that in his opinion death was caused by asphyxiation. Upon cross-examination he was asked if intestate had been found in the street under the same conditions what then would have been his opinion of the cause of death and he replied, organic disease of the heart. It was urged by defendant that the cause of death was organic disease of the heart and not the negligence of defendant. In this state of the case it was error not to allow Dr. Whitbeck upon plaintiff’s examination to answer the hypothetical question as to his opinion of the cause of death. The hypothetical question seems to have assumed nothing which was not based upon evidence in the case. Upon objection thereto the court asked the witness if he saw the deceased after death, to which the witness answered in the negative. The objection was thereupon sustained and plaintiff took an exception to the ruling. As this was one of the contested questions which the jury was called upon to decide, it cannot be said that the rejection of this evidence was harmless. The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide event.

All concurred.

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