107 N.Y.S. 944 | N.Y. App. Div. | 1908
Action to recover damages for death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. Plaintiff had a recovery, from which defendant appeals.
The intestate, at the time of his death, was in the employ of the defendant) who ivas constructing a twelve-story building,.the frame
It is not claimed jhat the platform or scaffolding was defective in quality or construction. The sole contention is — and the case was sent to the jury upon this theory — that the deféndant was negligent, if at all, in not covering the opening into which he fell. The defendant contends that he was under no obligation to have this space covered; that there was nothing in the nature of the work to indicate that covering was necessary, and the fact that there was ho covering was obvious to the intestate and he having continued in defendant’s employ with, knowledge of this fact, assumed the risk.
I have reached the conclusion that the judgment must be reversed for errors committed at the trial, and inasmuch as the evidence at the new trial may be different from what it was at the one which-resulted in the judgment appealed from,- it would serve no useful
At the trial the witness Hunt, after he had testified that he had huilt a great many scaffolds, was asked the following question: “ Q. How, from the description of this scaffolding and opening that you have heard here in court and what you saw at the time, would you say that that scaffolding was a 'safe, proper and secure one ? ” The question was objected to on various grounds, which were overruled, and an exception taken, and the witness answered: “Ho, sir, it was not safe. To make it safe and proper and secure, I would cover it in with planks, planks right in the opening before I put my scaffold.” A similar question was put to the witness McGlone, which was also objected to and the objection overruled and an exception taken. He stated that the scaffold was not safe. The questions were improper in form and called for a conclusion of the witness. They were improper in form inasmuch as they required the witnesses to draw inferences from conflicting testimony of other witnesses. Where the facts are controvered or are not entirely clear, a hypothetical question may be put to a witness who is competént to testify, based upon the facts claimed to have been, established, but such witness cannot be required to give an opinion based upon conflicting evidence. (Guiterman v. Liverpool, etc., Steamship Co., 83 N. Y. 358; Reynolds v. Robinson, 64 id. 589.)
The objections to the questions should also have been .sustained because the answers called for conclusions of -the witnesses; that is, whether the scaffold and run were safe. This was the very ques- • tion which the jury had to pass upon. It was, in effect, permitting the witness to say to the jury that the plaintiff is entitled to recover. (Dolan v. Herring-Hall-Marvin Safe Co., 105 App. Div. 366.) Testimony of this character has been many times condemned. (Harley v. B. C. M. Co., 142 N. Y. 31; Dougherty v. Milliken, 163 id. 527.) It is true that expert testimony is admissible with reference to the character and strength of materials used in the construction of scaffolds, the proper manner in which to construct them, and the weight which they will sustain. (Jenks v. Thompson, 179 N. Y. 20.) This class of evidence is admitted for the purpose of laying before the jury all of the facts, to the end that they may determine" whether a person has performed his duty in furnishing a reasonably
The witness Hunt was also permitted to testify, against the objection of defendant’s counsel, that immediately following the accident the opening under the masons’ platform, was covered. This also necessitates a reversal of the judgment. (Getty v. Town of Hamlin, 127 N. Y. 636.) What occurred subsequent to the accident, or what precautions were -taken to prevent similar accidents, could not be proved for the purpose of showing that-the defendant’s negligence was the cause of the intestate’s death. Whether that were caused by defendant’s negligence -necessarily had to be determined from the fact's as they existed at the timé of the injury. (Clapper v. Town of Waterford, 131 N. Y. 382.)
The judgment and order appealed from must be reversed and- a new trial ordered, with costs to appellant to abide event.
Houghton, Scott and Lambert, JJ., concurred; Patterson, P. J., dissented. .
Judgment and order reversed, new trial ordered, costs to- appellant to abide event.-