Van Wycklen v. City of Brooklyn

The plaintiff brought tins action to recover damages which he claimed to have sustained from the diverson by the defendant of the waters of a stream called Spring creek, and there was a verdict in his favor at the Circuit.

The judgment on such verdict was reversed by the General Term, and the order of reversal states that the facts were not before that court for review and its decision was upon the law only. The legal questions arising in this case are, therefore, properly before this court. Pharis v. Gere ( 112 N. Y. 408 ).

The plaintiff was the owner of a grist mill situated near the. junction of “ Spring creek” with Jamaica bay, and he derived the power to drive the machinery of his mill from the flow of the tide of the bay, and the flow of the waters of the creek.

The defendant, pursuant to a statute of the State, had acquired title to a strip of land upon the banks of the creek,, about two miles above the plaintiff’s mill, and upon such strip, of ground had constructed one hundred driven wells, from which it pumped water for the supply of the city. The-nearest well to the creek was distant therefrom about two. hundred feet, and the others were located at varying distances up to about six or seven hundred feet therefrom.

It was the claim of the plaintiff that these wells drained the water from the creek and arrested the same in running to the mill, thus diverting the living stream and impairing and injuring his water power; and there appears to have been a concession at the trial, and the same is made in this court,,

The question in issue, therefore, was, did the defendant by tlieir wells and machinery draw the water out of the creek after it became an open running stream on the surface of the earth.

At the close of the plaintiff’s case there was a motion by the defendant to dismiss the complaint “upon the ground that the evidence disclosed no liability on the part of the city,” which motion was denied, the court holding that the evidence presented a question of fact for the consideration of the jury.

We do not understand the learned counsel for the city to claim that there was any error in the denial of this motion, and it was not made a ground of reversal at General Term.

It is sufficient for us to say, therefore, that we think the evidence was of a character to permit the conclusion drawn by the jury, and it would have been error for the court to have withdrawn the case from their consideration. The jury having determined the facts in favor of the plaintiff’s contention, the judgement must stand unless there was error committed in the conduct of the trial.

The defendant called as a witness one William D. Andrews, who testified that his business was making and drilling wells and supplying water for cities and villages, and that he had constructed the wells in question. lie described the manner of their construction, and stated that they drew water from a depth below the surface ranging from thirty-five to sixty feet, and that the depth of the wells varied for the purpose of “getting the benefit of the water in different water-bearing strata.”

He was then asked the following question : “Was it possible for you to take in those pipes any water out of Spring creek ? ” This was objected to as “ opinionative ” and excluded, to which ruling of the court the defendant excepted.

While we recognize fully the difficulty at times of deciding whether the case presented is one in which expert or opinion evidence is admissible, the majority of this court is of the opinion that the ruling of the trial judge was correct.

Within the general rule that witnesses who are skilled in science and art, and those who from experience and special study have peculiar knowledge upon the subject of inquiry which jurors have not, may testify not only to facts, but may also give their opinions as experts, the decisions of the courts have given a wide range to expert evidence.

No rule, however, can be made so precise as to include all cases, and each question as it arises must be determined by the application of general principles to the particular inquiry involved in the case before the court.

While it is no longer a valid objection to the expression of an' opinion by a witness, that it is upon the precise question which the jury are to determine (Transportation Line v. Hope, 95 U. S. 297 ; Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42 ; Cornish v. F. B. F. Ins. Co., 74 id. 296), evidence of that character is only allowed when, from the nature of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable. (Fe rguson v. Hubbell, 97 N. Y. 507 ; Schwander v. Birge, 46 Hun, 66 ; Greenl. on Ev. vol. 1, § 440, and note.)

Familiar examples of the admission of evidence of this character, are cases involving questions of medical practice and skill, and cases involving genuineness of handwriting. Within the same principle the question whether a vessel was unseawortliy was held admissible, because it involved the result of an examination which could not be fully communicated to a jury. (Baird v. Daly, 68 N. Y. 547 .)

The rule is well stated by Justice Bradley, in Schwander v. Birge (supra), as follows: “ 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 clescripi/i/ve 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.”

To the same effect it was said by Judge Earl, in Ferguson v. Hubbell (supra): “ Opinions are allowed when the facts cannot be adequately placed before the jury so as to impress their minds, as they impress the mind of a competent skilled observer. * * * When the facts can be placed before a jury, and they are of such a nature that juries generally are just as competent to form opinions in reference to them, and draw inferences from them as witnesses, there is no occasion to resort to expert or opinion evidence.”

The question which the jury in this case was to decide was

There was nothing in the case as developed by the plaintiff that made opinion evidence admissible.

To sustain his theory that the subsidence of the waters in the creek was caused by the pumping from the wells, he had given evidence that the stream was made up largely of surface drainage, and not from underground currents; that it had never prior to 1883 dried up; that immediately following the commencement of the pumping from the wells the creek dried up at a point nearest the wells, while the water further up the stream and in its tributaries continued to flow.

He further showed generally the character of the surrounding soil, and that as the pumping continued and exhausted the water near the wells, the water disappeared further up the stream until its flow was substantially destroyed. The evidence of Andrews, given prior to being asked the question under consideration, added no new facts to the case. The question put to him in substance called for his opinion upon the facts proven. In other words he was asked to draw inferences and form conclusions which belonged exclusively to the province of the jury.

"Whether or not the disappearance of the creek was caused by the pumping at the wells or whether the waters of the creek could Alter through the ground and reach the bottom of the wells, depended upon the operation of natural laws, and if the witness had an opinion upon that subject it must have had its foundation in facts, such as the sources of the stream, the character of the soil between the bed of the creek and the bottom of the wells, the velocity of the stream and its grade, the course of the current, etc. These and any other facts bearing npon the question in issue, if deemed competent to overcome the effects of plaintiff’s testimony, and account for the disap

The form of the question in this connection must be observed. It was not an inquiry into the causes of the disappearance of the stream, and called for no fact bearing upon the question which the jury could have considered. FTo opinion even upon the cause of the disappearance of the water was asked, but simply whether it was possible for the pumps to draw the water from the creek. This admitted of a simple negative answer, which could have throAvn no light on the case, and afforded no assistance to the jury in their deliberations, and might have had no foundation except deductions and inferences from the evidence already in the case.

The purpose of expert evidence is to aid the jury in their deliberation on the case and in their review of the evidence, and to be competent for that purpose it must, AAdiere the questions involved are not ones of science or art, be based upon evidence in the case and confined in cases of this character .to the causes of the injury complained of.

In Moyer v. New York Central & Hudson River Railroad Company ( 98 N. Y. 645 ), the question held to be competent was “ are there any adequate causes in your opinion for this,” referring to the injury complained of. The court said, “ the witness, an expert, might very well be asked, in the presence of a given effect, of what causes it either was or might be the resultant. * * * It assumed an hypothesis, the truth or falsity of which was left open to the jury, and then asked not Avliat, caused the injury, but Avliat were all the adequate

Here the inquiry was of a very different character. It left nothing to the jury and it indicated no cause for the injury.

Assuming a negative answer to the question, to obtain which was its object, the defendant proposed to say to the jury: It is impossible for our pipes to draw the water out of the creelc, notwithstanding all that plaintiff has proven. But as this was a mere naked opinion upon the precise question which the jury were to decide, it clearly was inadmissible.

None of the cases cited by the learned General Term are in point. Commonwealth v. Choate ( 105 Mass. 456 ), was an indictment for arson, and the case goes no further than to hold admissible the opinion of competent witnesses that two pieces of wood, which it was claimed connected the prisoner with the crime, were parts of the same stick. Obviously this evidence falls within the rule stated in Schwander v. Birge, where the means of knowledge of the witness existed in reasons rather than descriptive facts, and the case is analogous to those cited in this opinion relating to questions of skill and special and peculiar knowledge.

Buffum v. Harris ( 5 R. I. 243 ), was a case somewhat like the one under consideration, but there the experts stated facts upon which they based their conclusion, and the court held the opinions admissible in connection with those facts. The same may be said of the case of Detweiler v. Groff ( 10 Penn. St. 377 ), and Phillips v. Terry ( 3 Abb. Ct. App. Dec. 607 ), cited by the respondent. Moyer v. New York Central & Hudson River Railroad, has already been referred to. Between that case and the one under consideration, there is no similarity.

If the question had called for a statement by the witness of any adequate cause within his knowledge for the disappearance of the creek, it would have been within the principle of the Moyer Case and been admissible. The jury would then liaAe had before it an hypothesis or theory, the truth or falsity of which they could have considered in connection with the open

We are of the opinion that this case was not one in which it was impossible to place the facts bearing upon the matter in controversy before the jury, and that to have admitted the opinion of the witness called for by the question asked, would have extended the rule as to expert testimony beyond that of any reported case "within this state.

Whatever may be the rule elsewhere, the decisions of this state are adverse to the rule contended for by the respondent.

Our conclusion is that the ruling of the trial court was right.

There was no- error in the ruling upon the other question asked of the same witness and excluded upon the plaintiff’s objection.

It was of no importance what the system of pumping operated by the defendant was designed to reach, or what it depended upon. The question was, did it reach the waters of the creek and divert them from the living stream, and upon that question the evidence excluded had no bearing whatever.

The order of the General Term should be reversed and the judgment entered upon the verdict affirmed, with costs.

(dissenting). I deem it proper in this case to present the grounds of my dissent from the opinion of the majority of the court. Passing the verdict found by the jury and assuming that it must be approved by this court, though it practically rests upon the theory that water of a running stream proceeding from a water-shed of uplands and brooks, and flowing along a well-defined and ancient channel, has been drawn to the points of driven wells or tubes of iron with small openings in the lower end of the same and inserted in the earth to the depth of thirty feet below and one hundred and fifty feet one side of the channel, or in other words, that water without obstruction to pursue its wonted channel to a lower level, may be diverted or drawn through solid earth twenty-five feet deep and one hundred and fifty feet wide to the vacuums in- the- small tubes produced by the machinery

There is but one question to be considered upon this appeal. That question is whether a witness conceded to be an expert, by the ground of the objection, and who examined the stream in question and its origin and the lands from and through which it flows and who devised and erected the machinery connected with the driven wells, and has had fifteen years experience in sinking and operating this species of wells, may be allowed to express liis opinion to an ordinary jury impaneled to try the question whether the main body of such stream has been withdrawn by means of these wells; or in the language of the question which the learned trial court overruled viz: “Was it possible for you to take in those pipes any water out of Spring creek ? ”

Bo one will deny that the general rule is that testimony can relate merely to facts, and that inferences from them are to be made by the jury. (Lawson's Expert and ()pinion Evidence, 200.)

But this general .rule has been broken in upon by the admission of various classes of exceptions, resting upon the common ground of necessity. (Id.) “ Such necessity is allowed to exist where the facts in issue are not themselves accessible by evi

Lawson, in his Avorlc upon expert and opinion eAddence, cites numerous cases which illustrate the line of distinction applicable to varioxis subjects and situations Avliere opinion eAddence may, and where it may not be receiAmd. (1 Car. & P. 76; Folkes v. Chadd, 3 Dougl. 157; 1 Phillips on Ev. 778; Goodtitle v. Braham, 4 T. R. 498; Price v. Powell, 3 N.Y.

The cases in which it may be properly received are embraced in the language of the opinions of the different judges similar to that employed in the text of Lawson, supra.

Judge Danforth, in Scattergood v. Wood ( 79 N. Y. 266 ), states the rule as follows; “ The inquiry related to a matter which was not the subject of general knowledge, but depended on facts which, from their nature, it would be difficult, if not impossible, to place before the referee, and the statement embodied in the opinion given in evidence was itself a fact derived from peculiar knowledge and skill in the use of the various machines referred to. It was the result of professional knowledge and practical experience (Emerson v. Lowell Gas Light Co., 6 Allen, 146 ), and the question raised by the warranty could hardly be answered except by the direct opinion of those who, possessing this superior knowledge and experience, had seen the machines m operation or knew the merits of machines constructed under the plaintiff’s patent, and others then in use. Upon this ground, therefore, as well as the one first stated, I think the evidence objected to was properly received/’ In Smith v. Gugerty ( 4 Barb. 625 ) the court says: “ The witness was asked his opinion as an expert. The question is competent and proper when it relates to a deduction from facts concerning which the witness has a knowledge peculiar to his science, art or profession, and which is not common to the world. In such cases the jury are unable to draw a correct conclusion from the facts, and must necessarily rely upon the opinions of those who are better enabled to do so by their professional experience. * * * The requisite knowledge is confined principally, if not wholly, to the class of mechanics to which the witness belonged. That brings it within the rule.” Judge Allen, in Baird v. Daly ( 68 N. Y. 551 ), says: “It was competent for the defendant, and he should have been permitted to show by the witness Hays that the scow was unseaworthy; that is, unfitted and unsafe for

Judge Earl said, in Ferguson v. Hubbell ( 97 N. Y. 513 ): “ Witnesses who are skilled in any science, art, trade or occupation may not only testify to facts, but are sometimes permitted to give their opinions as experts. This is permitted because such witnesses are supposed, from their experience and study, to have peculiar knowledge upon the subject of inquiry which jurors generally have not, and are thus supposed to be more capable of drawing conclusions from facts, and to base opinions upon them, than mrors generally are presumed to he. Opinions are also allowed in some cases where, from the nature of the matter under investigation, the facts cannot be adequately placed before the jury so as to impress their minds as they impress the minds of a competent, skilled observer, and where the facts cannot be stated or described in such language as will enable persons not eye-witnesses to form an accurate judgment in regard to them, and no better evidence than such opinion is attainable.” And Judge Bradley Used language of similar import in Scwander v. Birge, quoted in the opinion of my brother Brown in this case. But while the language used in the last two eases cited lays down the rule of the admissibility of opinion evidence in certain eases, they hold that the eases then under consideration did not admit of such evidence, and the reasons for so holding in those cases are, in my judgment, entirely decisive of the admissibility of the evidence excluded in this case.

In the case under consideration the device itself, the laws of nature involved in its operation and the manner of utilizing those laws in the supply of water ata particular point, is novel and unknown, if not a mystery to the common mind of the ordinary juror. Whether the water flows to the openings in the tubes solely through the law of gravity and the mobility of the water, or is drawn to those points by atmospheric pressure;

This case, it seems to me, very plainly belongs to that class which is described in the language of Judges Eabl and Bbadbey above quoted as allowing, if not requiring, opinion evidence, and not to that class of cases in which those learned judges held this species of evidence not to be admissible. Those cases were Ferguson v. Hubbell and Schwander v. Birge (supra). The former of these cases was an action to recover the damages which plaintiff has sustained in consequence of. the negligence of the defendant in setting fire to his fallow, and thus burning ¡plaintiff’s house and barn.

After testimony had been given by various witnesses in relation to the condition of the land, the state of the weather, and of the wind and various other circumstances surrounding the fire, the defendant in his own behalf testified that he was a farmer and had himself, and had seen others clear land, was asked, “ What do you say as to whether or not as to that

Judge Earl also refers to similar cases, Fraser v. Tupper ( 29 Vt. 409 ) and Higgins v. Dewey ( 107 Mass. 494 ), decided in the same way and upon same grounds.

The case Schwander v. Birge ( 46 Hun, 67 ) was an action to recover the loss sustained by the plaintiff for the negligence of the defendant in so constructing his building or factory, that, the plaintiff’s intestate, who was an employee of the defendant, could not escape from the fire which consumed the building. The plaintiff’s intestate was upon the fifth floor of the building when the fire was discovered in the lower part, of the building. The length, height and structure, including hallways, doors of egress to the roof and adjoining buildings,.etc., etc., were proven.

After this evidence, a witness in behalf of defendant was

I have t-lms far considered the main, if not the only question in this case. There is no occasion to consider any other, for it is conceded, in the opinion of the majority of my brethren, that the witness was an expert and was conceded by the ground of the objection to liis eiddence to be an expert. (Schwander v. Birge, 46 Hun, 68 ; Stevens v. Brennan, 79 N. Y. 255 .) Nor that the question proposed to the ivitness was or ivas quite near to the question to be decided by the jury. (Curtin v. Gokey, 68 N. Y. 426 ; Transportation Line v. Hope, 95 U. S. 297 ), and other cases cited in opinion of Brother Brown in this ease.

Some criticism is made in that opinion in relation to the form and point of the question asked, “ whether it was possible for the pumps to draw the Avater from the creek ? ” and that a negative answer to it Avould not have explained the disappearance ot the stream. While that is quite tme, I do not perceive

I think the order or judgment of the General Term should be affirmed with costs.

All concur with Brown, J., except Follett, Ch. J., Potter and Haight, JJ., dissenting.

Order reversed and judgment affirmed.