153 N.Y.S. 22 | N.Y. App. Div. | 1915
The plaintiff was injured in February, 1914, by the falling of a telephone pole which he and four other employees of the defendant, under the direction of defendant’s foreman, were engaged in raising in connection with the building of a telephone line from Lake George to Warrensburg, N. Y.
The pole was of green chestnut and frozen, about thirty feet in length, about nine inches through at the top, and about fourteen inches through at the butt. The morning was cold and frosty with the temperature about fifteen degrees below zero, and with eight to twelve inches of snow on the ground, covered by a hard crust sufficiently strong to bear the weight of a man. Four of the men, including the plaintiff, were supplied with pike poles. It was the duty of two of the men, using their long pike poles, to hoist the telephone pole, and of the plaintiff and one of the other men who were stationed on opposite sides of the pole to steady it with their short pike poles and prevent its swaying as it was being raised. It
At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the ground, among others, “ that the alleged act or omission on the part of Eoy Farmer [the foreman] in manipulating the cant hooks which, it is claimed, resulted in the falling of the pole, was the act or omission of a fellow-servant for which the defendant is "not hable.” The court denied the motion for a nonsuit, stating that he should submit the case to the jury upon two propositions, in addition to that of contributory negligence, one under the common-law count and the other under the Employers’ Liability Act (Labor Law, [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352). At the close of. the evidence the court submitted to the jury two propositions relative
The defendant excepted to the denial of the motion for a non-suit, and to the submission of the two propositions to the jury.
The jury rendered a ierdict in favor of the plaintiff.
We think the court erred in submitting to the jury the second proposition, for the reason that the work of Farmer in holding the cant hooks was not a detail of superintendence, but was the work of a fellow-servant, and hence his negligence in allowing the cant hooks to slip, if negligence it was, was negligence for which the master was not liable.
In the case of Hope v. Scranton & Lehigh Coal Co. (120 App. Div. 595) the rule laid down as the test of the act of superintendence was that unless the act was of itself one of direction or of oversight tending to control others, or to vary their situation or action because of his direction, it' cannot fairly be said to be one in the doing of which the person intrusted with superintendence was in the exercise of superintendence. In the case of Flynn v. Boston Electric Light Co. (171 Mass. 395) where men were stringing an electric wire through trees, and the foreman had given directions to pull the wire, and was himself assisting in the work, and the plaintiff was injured thereby, it was held that in the act of pulling the wire the foreman was a coservant, and not engaged in superintendence, and hence the master was not liable for negligence of the foreman in pulling the wire. In Larson v. Brooklyn Heights Railroad Co. (134 App. Div. 679; affd., 202 N. Y. 563) it was held that in order to hold a master liable under the Employers’ Liability Act for the negligence of a foreman it must be shown not only that the negligence was that of a person exercising- superintendence, but that he was engaged in an act of superintendence at the time. In that case it was also held that where the plaintiff, a laborer engaged in removing
We also think that the court erred in the admission of certain testimony.
In support of his claim that the defendant was negligent in not having furnished sufficient men to erect the pole, the plaintiff called four witnesses, experienced in that line of work. Each of these witnesses testified in effect, under the objection and exception of the defendant, that the number of men usually employed in the erection in the winter time of a green chestnut pole, thirty feet long, eight to ten inches at the top, and sixteen to eighteen inches at the base, the thermometer being twelve to fifteen degrees below zero, with one foot of snow on the ground, with a crust of sufficient strength to hold a man not carrying a load or subjected to any pressure, was eight.
Following such testimony the first witness was asked “ Then what do you say as to whether or not it could be erected with safety with a lesser number of men, taking it with pike poles and cant hooks ?” Under defendant’s objection that the testimony was incompetent and immaterial, ahd not the proper -subject of expert testimony, and under defendant’s exception, the witness answered that it “could not be erected with any safety with a less number of men.” Another of the four witnesses was allowed to testify under defendant’s objection and exception that under such circumstances , the number of men usually employed to erect a pole of those dimensions with safety on
We think it was error to permit the witnesses to testify as to whether the pole could be erected in safety with less than eight men. The rule as to the admissibility of expert evidence was stated in the case of Dougherty v. Milliken (163 N. Y. 527), as follows: “It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them tó speak with authority upon the subject. If, in such cases, the jury with all the facts before them can form a conclusión thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. ”
This rule was repeated in Schutz v. Union R. Co. (181 N. Y. 33) and in the case of Welle v. Celluloid Co. (186 id. 319). In the latter case the court said: “The governing rule deduced from the cases permitting the opinion of witnesses is, that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts, and, therefore, cannot be intelligently communicated to others not familiar with the subject, so as to possess them with a full understanding of it. (Schwander v. Birge, 46 Hun, 66; Van Wycklen v. City of Brooklyn, 118 N. Y. 424.) ”
There are many other cases in which this rule has been reit
In the case at bar the answer to the question as to how many men were required to erect the pole in safety did not require professional or scientific knowledge or skill, not within the range of ordinary training or intelligence. Neither was the conclusion to be drawn by the jury dependent upon the existence of facts which were not common knowledge and peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. Upon the other hand, the raising of the pole was a simple operation, and as in the case of Ferguson v. Hubbell (97 N. Y. 507) the subject concerning which opinions were given was one susceptible of descriptive facts from which the jury might draw the conclusion. The circumstances and conditions attending the operation were fully developed upon the trial; and under the evidence, exclusive of the testimony of these expert witnesses, the jurors as men of more or less practical experience were fully capable of arriving at an intelligent conclusion as to whether under the conditions which existed there that day, six men were a sufficient number to erect the pole with safety, and whether the exercise of reasonable prudence and care would not have required the employment of additional men. While the testimony referred to was inadmissible, perhaps we should not consider its admission, of itself, of sufficient importance to justify ordering a new trial of the action, as following its introduction the defendant called several witnesses of large practical experience in setting poles who testified that six men were sufficient to set the pole. The wholé subject was fully gone into by the defendant and very likely the result would not have been different, had the testimony of these alleged expert witnesses been excluded, nor is it certain that such testimony materially influenced the verdict, but as a new trial of the action must be had, we have thought it advisable to call attention to this evidence in order that we may not be considered as having approved of its admission.
Because of the errors above stated we think the judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Howard, J., dissenting.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.
