Bailey v. Rome, Watertown & Ogdenburg Railroad

Hardin, P. J. When this case was before us on a former appeal, (3 N. Y. Supp. 585,) we stated the principles of law applicable to the case, with nu [782] merous citations of authority upholding them, and reached the conclusion that the “evidence (in this case) was insufficient to justify the submission to the jury of the question of the defendant’s negligence, and that the court erred in refusing to grant the defendant’s motion for a nonsuit.” We adhere to the principles of law found in the opinion of the court delivered on that occasion. We think the learned trial judge fell into an error in receiving the testimony of witnesses upon the subject of a capacity of a brakeman to displace the rod in case the pin had remained therein; and also upon the subject of whether or not a “ pin or ring could be lost out on the road between Norwood and De Kalb, in the absence of the use of the brake, and in the absence of any accident.” We think neither of the subjects of the opinions received embrace questions of science or skill. Teall v. Barton, 40 Barb. 137. We think the language of Miller, J., in Hart v. Bridge Co., 84 N. Y. 60, is applicable to the rulings made. He there says: “It was entirely a matter of opinion not properly within the rule which allows the testimony of experts, and in regard to which one individual could-form a judgment as well as another, both having equal knowledge of the circumstances. It did not relate to anything connected with the safety or the strength of the construction, but to a question of fact, which properly belonged to the jury to pass upon, and which could not be disposed of upon the opinions of witnesses. ” In Ferguson v. Hubbell, 97 N. Y. 513, the subject of the opinion of witnesses is considered, and it is there said: “Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them, and draw inferences from them, as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence it is not needed that the jurors should be able to see the facts as they appear to eye-witnesses, or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life, can appreciate them, can base intelligent judgments upon them, and comprehend them sufficiently for the ordinary administration of justice.” We think the subjects of inquiry were not such as to require or authorize the opinion of the witnesses, and that it was error to receive such opinions. In Vosburg v. Railroad Co., 14 Wkly. Dig. 514, where the construction of the Ashtabula bridge was the subject of inquiry, I prepared an opinion which upheld the ruling allowing an engineer to state that the bridge fell because of “the bad design of the work as built, and also the defective manner of constructing the work. ” That case was afterwards affirmed by the court of appeals. 94 N. Y. 374. We think the ease is distinguishable from the one before us, and nothing is stated in either of the opinions, either the opinion delivered in this court or in the court of appeals, tending to support the rulings in the ease in hand. In Schwander v. Birge, 46 Hun, 66, the question was whether the means of egress from a building “ were reasonably sufficient, and all that due care required of the defendant to provide for his employes;” and it was held that the opinion of witnesses upon that subject could nut properly be received. The question was one of fact for the jury, and the decision is put upon the authority of Ferguson v. Hubbell, supra. The evidence upon the subject of the alleged negligence of the defendant is so meager that we do not feel warranted in saying that the evidence which was received of the opinions of witnesses was not prejudicial to the defendant. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. All concur.