Finn v. Cassidy

The jury rendered a verdict of three thousand dollars for the plaintiff as compensation for the injury received on the twenty-fifth day of September, 1894, while in the defendants’ service. At that time the defendants, who were general contractors, were engaged in preparing the foundation for a building to be used as a power house by the Albany city water works. It seems that it was necessary, in order to get a proper foundation, to excavate a trench to the depth of about thirty-one feet below the surface of the ground. This trench was not only of the depth stated but very wide, and it became necessary to shore up or brace the sides in order to keep the earth in place. In carrying along this trench the contractors passed near the foundation of a chimney stack one hundred and ten feot high, and it was necessary in order to secure the chimney to support its foundation on the side next to the trench. This chimney was intended to be part of the structure when completed and rested upon a foundation which extended twenty feet below the surface of the ground and extended along the line of the trench about twenty feet. In excavating the main trench opposite the stack the wall of the trench on that side had been carried down at an angle so as to leave what is called a “ batter ” wall to support the stack. The main trench itself, as already stated, was thoroughly supported by timbers, and no accident happened for want of any care in that respect. But it became necessary to support the chimney in some way, as it was feared that, on account of the depth of the main trench, it would be undermined and fall. In working under the foundation of the chimney narrow cuts three or four feet wide were made

The plaintiff’s action is based upon the claim that the usual and proper precautions were not taken by the defendants to support the overhanging earth between the top of the cut and the bottom of the foundation, and that lie was not provided with a reasonably safe place to work in under the circumstances. The defendants were aware of the actual situation and all of the dangers that attended the performance of work in these narrow cuts after the earth above and upon the sides had been saturated with the percolating water. It was, therefore, a question of fact for the jury to determine whether the defendants had performed the duty imposed upon a master to

It is strenuously argued, .however, by the learned counsel for the defendants that this judgment should be reversed upon an exception taken at the trial to certain testimony offered and received in behalf of the plaintiff. The plaintiff’s counsel called a civil engineer of eight years’ exjierience in his profession, and who, it appears, had charge of work of like character, and was at the time superintending an excavation about

I do not think that it was error on the part of the learned trial judge to permit an inquiry of this character to be made of a witness who was clearly an expert. The learned counsel for the defendants contends that it was, and his argument is based upon the proposition that the facts should have been stated and then the jury permitted to decide for themselves. This is the usual argument urged in all such cases. There is, doubtless, some confusion in the cases with respect to the admissibility of the opinions of experts upon issues such as are involved in this case, hut, I think, the ruling of the learned trial judge was correct, both upon principle and the great weight of authority. It is quite probable that there was not a man upon the jury, unless he happened to be an expert, who would have attempted to solve the problem of properly supporting and sustaining the chimney in question without calling to his aid some expert advice from an engineer or some person of experience on such a subject. The common mind, as we know, is not always equal to the proper solution of such a problem in such an emergency, and the counsel and advice of engineers or persons of experience in such matters is always valuable and desirable, and it is quite plain that the tendency of courts and writers on the law of evidence is in that direction. A learned author of a standard work upon the law of evidence has recently examined the question with much care and has collected authorities bearing upon the question from many sources. (1 Greenleaf on Ev. [ed. 1899] § 441.) He lays down the rule on the subject of expert opinions as evidence in the following manner: “ Since the so-called expert will, by hypothesis, usually be better able than the jury to draw' inferences on such matters, it occurs in practice that experts are usually able to be helpful with their opinions and are, therefore, usually, but not necessarily, allowed to state them. Thus, in practice, opinions are receivable, first, from

In Prendible v. C. R. Mfg. Co. ( 160 Mass. 131 ) it is stated as follows: “We are of opinion that a person who has made a special study of the strength of materials and the proper mode of building structures to sustain weight may be allowed to give his opinion as to whether a staging erected in a specified way can safely be trusted to carry a particular load. That was the substance of the hypothetical question put in this case. Although by reason of its form it did not direct the attention of the witness to the elements of fact involved so particularly as it might have done, it was not so objectionable as to be incompetent.”

In 1 Smith’s Leading Oases, 286, the admissibility of expert evidence is stated as follows: “ The opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter óf inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.”

In Turner v. Haar ( 114 Mo. 345 ) it was held that the question as to what effect the running of machinery on the third floor of a building would have toward weakening the building and rendering it insecure and dangerous was a subject beyond general knowledge, and one about which an expert might give an opinion.

In Continental Ins. Co. v. Pruitt ( 65 Tex. 125 ) it was held that a builder might give his opinion as to whether the walls of a building were sufficient to sustain it.

In Buffum v. Harris ( 5 R.

In Clark v. Willett ( 35 Cal. 534 ) it was held that the proper method of proving the effect of tunneling near other property, with respect to causing the earth to settle and slide, was by taking the opinions of witnesses acquainted with the character of the soil and the surrounding circumstances.

It seems to me that the decisions in the courts of this state, and especially in this court, amply justify the rules and principles contained in the authorities cited. In some of them it will be seen that the opinions of experts have been received in issues much more likely to be comprehended by the jury from a simple statement of the facts than in the case at bar. Thus it has been held that it is no objection to this class of evidence that the question propounded to the witness is the precise question the jury is to determine. (Van Wycklen v. City of Brooklyn, 118 N. Y. 424 .)

The opinion of an expert may be competent by stating to him a hypothetical case, taking in some or all of the facts stated by witnesses and claimed by counsel, putting the question to be established by their evidence, and when the question is thus stated the witness has in his mind a definite state of-facts, and the province of the triers, whether referees or jurors, is not interfered with. They will determine whether the facts exist which are thus assumed and thus give the opinion such weight as they think it is entitled to, with a full knowledge of the facts upon which it is based. (Reynolds v. Robinson, 64 N. Y. 589 .)

Whether in any case a witness is qualified to speak as an expert is a fact to be determined by the court upon the trial preliminary to his tesifying, and ordinarily the decision of the trial court on this point, when there are any facts to support it, is not open to review in this court. (Nelson v. Sun Mutual Ins. Co., 71 N. Y. 454 .)

In Pullman v. Corning ( 9 N. Y. 93 ) the witness was permitted to express an opinion as to whether a cobble stone wall was properly built. It is needless to say that it would be much easier for the jury to determine whether the wall was or was not suitably built after learning all the facts, than for the jury in this case to determine whether this piece of tunnelling under the foundation of a chimney more than thirty feet below the surface of the ground was' properly guarded and protected with reference to the safety of the workmen.

So an engineer, having experience in the erection of bridges, was permitted to testify under objection and exception that it was not customary to have guards of any kind on drawbridges, and this court held that the question was proper. (Hart v. Hudson River Bridge Co., 84 N. Y. 56 .)

So it has been held competent to ask a cabinetmaker, who had performed part of the .work in controversy, whether the work was a good job and well done. ( Ward v. Kilpatrick, 85 N. Y. 414 .)

So this court has held upon an issue concerning the value of a growing crop damaged by the overflow of water, that it

So it has been held that the opinion of an expert is admissible upon an issue as to whether a scow was seaworthy or not. (Baird v. Daly, 68 N. Y. 547 .)

So it has been held that a hypothetical question need not include all the facts in evidence, and is good as against the objection that it does not correctly state the facts, if the proof justifies the assumption, of the facts covered by the question. (Cole v. Fall Brook Coal Co., 159 N. Y. 59 .)

So an expert witness was permitted to state against objection and exception that a particular test applied by parties to fire hose was not a fair one. (Chicago v. Greer, 76 U. S. 726 .)

So it has been held that it is competent for an expert to express an opinion as to whether it would be safe or prudent for a tugboat to tow three boats abreast in a high wind upon a bay or arm of the sea. (Transportation Line v. Hope, 95 U. S. 297 .)

This review of the cases and authorities seems to me to amply justify the assertion that the question propounded in the case at bar to a civil engineer embraces a proper inquiry. The contention that the jury could have drawn the conclusion as well as the engineer is not, I think, correct. It is very difficult for a witness to picture to a jury in words the real situation that confronted the plaintiff at the moment that he stepped into the trench by the direction of the master. It would be still more difficult for them to determine what should have been done in order to make the place where the plaintiff was injured reasonably safe and suitable for the workmen. To say that an engineer' of experience in such matters could not assist the jury by an expression of opinion would be to ignore well-known facts and to disregard the principle upon which the opinions of experts are received in evidence. It does not follow that because the rule permitting experts to give opinions has been often abused, especially by medical experts and those claiming to be skilled in handwrit

The authority which is cited by the counsel for the defendants to support his argument that the ruling of the court in this case admitting the testimony of the engineer in answer to the question as propounded to him was legal error, requiring a reversal of the judgment, is the recent case of Dougherty v. Milliken ( 163 N. Y. 527 ). The decision in that case has no bearing on the question now before us, and for these reasons : (1) There was not a single fact in that case, as the learned judge stated, upon which the charge of negligence could rest, and that circumstance alone would have justified the decision (p. 532). (2) There were no facts shown upon which an expert ceuld properly base an opinion. It was admitted that if it had been shown what amount and the kind of strain the eyebolt which gave away had been subjected to, and its size, inherent tensile strength and the character of the fastenings to the base, that there would then be a case for the opinion of an expert (p. 534.) (3) It was held that the questions were insufficient and improper in form to lay the foundation for even such opinions as were given. Neither the size, capacity or material of the eyebolt was described, and, hence, there was no basis for an opinion. The opinion of an expert in order to be admissible must be based upon facts either within his own knowledge, or presented to his mind through the form of a hypothetical question.

All the elements for an opinion that were absent from that case are notably present in this. Here the facts and the whole situation are disclosed, and an experienced engineer is asked to state how the danger incident to such a place could have been reasonably obviated to insure the safety of the workman. That was the theory upon which the question was asked and answered, and it seems to me that no reasonable mind can fail to see that the opinion of an engineer under such circumstances would be helpful to either court or jury. It is probably true, as already observed, that no member of this court, or of the

' The cases in which opinions are excluded are well illustrated by the discussion in Ferguson v. Hubbell (91 FT. Y. SOY). There the negligent act charged was setting fire to fallow land at a dry season of the year when the wind was blowing a strong gale. The defendant proved the condition of the land, the state of the weather and the velocity of the wind with all the circumstances. FTot content with all that, he called several witnesses and inquired of them whether in their opinion it was a proper time to burn the fallow. He succeeded before the jury, but the judgment in his favor was reversed upon exceptions taken to this class of testimony. Flow that was a case where the jury could not, after hearing all the facts, be enlightened by the opinions of farmers to the effect that the fire was or was not properly set. But there is a wide difference between the nature of the issue in that case and the one at bar. The circumstances under which a fallow may be burned are known of all men, but the conditions that are necessary to insure the safety of a workman in a narrow tunnel thirty feet under the surface of the ground are not. There is doubtless a growing tendency in the profession to press what is called expert evidence into cases and questions where it has no proper place. The practice is not to be com

(dissenting). I must dissent from the opinion in this case. While I have my doubts upon the proposition that it was a question of fact for the jury to determine, whether the defendants had performed their duty to provide a reasonably safe place for the jdaintiff to work in, and am inclined to think that the latter assumed the risk of the situation, I, nevertheless, shall not dissent upon that ground. I think that it was error to admit the opinion evidence, which was given by the civil engineer. The opinion of Judge O’Brien is misleading in its discussion of that question, in so far as the situation is concerned which the facts revealed. It is evident from that opinion that the learned judge is impressed with the idea that the danger nf the place, in which the plaintiff was at work, was connected with the work of underpinning the chimney stack; whereas, in fact, it was not.

The facts are briefly these : that, while preparing for the foundation of a building to be erected by them for the Albany water works, the defendants excavated a deep trench, within some twelve feet of a chimney stack, about 112 feet in height, and at a depth greater than that of the foundation of the chimney, by eleven feet. In order that that foundation might be strengthened and supported by an underpinning, or piers of masonry, they made a number of tunnels, or cuts, through the earth, from the trench to points under the chimney foundation, and as each tunnel was made the pier was constructed therein. These tunnels were irregularly arched and not shored

The prevailing opinion is misleading in conveying the impression that this opinion evidence was proper and necessary by reason of the problem presented of underpinning this chimney stack, and authorities are cited to support the view that the opinions of persons, who have made especial study of the strength of materials, or of the proper mode of building structures to sustain weight, or of questions concerning structural or architectural strength, are proper. The authorities, however, are not applicable to such a commonplace and everyday state of facts as that which this case presented. There was nothing in question here but the making of, a temporary hole, or tunnel, through a ledge of earth. Under the circumstances- detailed, there was nothing which necessitated the opinion of a civil engineer, or of any expert in difficult construction work, in order that the jurors might comprehend the question, and without which they would be incompetent to draw their conclusions. It cannot, reasonably, be said that the description of this hole, or tunnel dug in the earth, would have conveyed an imperfect idea of its safety. Extensions of the rule which permits of opinion evidence are not to be favored.

Haight, Cullen and Werner, JJ., concur with O’Brien, J., for affirmance; Parker, Ch. J., concurs with Gray, J., for reversal; Landon, J., not sitting.

Judgment affirmed.