Schwander v. Birge — 10 N.Y. St. Rep. 802

Majority

p. 802

George Schwander as Administrator, etc., of Peter Schwander, Deceased, App’lt, v. Martin H. Birge, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1887.)

Headnote

1. Exception—Objection as to incompetency op evidence does not

RAISE QUESTION AS TO COMPETENCY OP WITNESS.

Where the objection is made to a question that the fact is for the jury to determine, this objection does not raise ihe question as to the competency of the witness, and the exception taken goes only to the competency of the evidence.

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2. Wetnesses—Opinions of, when to be excluded—When deceived —Questions of skill, science and experience.

Where the jury can obtain an intelligent understanding of the situation, the rule requires the testimony of witnesses to be confined to a statement of facts and the conclusions or oninions of witnesses will not be permitted as evidence. But where elements enter into the subject of inquiry which cannot be disclosed by witnesses so as to possess the jury with the information requisite to a complete understanding of it, the opinion of experts may be received. The governing rule permitting the opinions of witnesses is that the subject must be one of science or skill, or one of which observation and experience has given the opportunity and means of knowledge which exists in reasons rather than 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.

Appeal from judgment entered' on verdict of Erie circuit,

Adelbert Moot, for app’lt; William B. Hoyt, for resp’t.

The action was brought to recover damages resulting from the death of the plaintiff’s intestate alleged to have been occasioned by the negligence of the defendant, who was engaged in the manufacture of wall paper at the city of Buffalo in a five-story building, which was destroyed by fire December 11, 1880. And by such fire Peter Schwander, then nineteen years of age, lost his life. He was an employee of the defendant, and his duties took him to all the floors of the building. The negligence of the defendant charged was in his alleged failure to provide suitable means or facilities for his employees to escape from the building at the time of the fire. When the case was here on review of the first trial, the duties of the relation as employer and employee of the defendant and the plaintiff’s intestate, and the principles applicable to it, were declared by the opinion of the court. 33 Hun, 186 .

And the facts appearing on this trial relating to the merits, have not so modified the situation represented by them on the former trial as to render the rules of law applied on that review inapplicable to this one. In that view the evidence on the trial now under consideration was sufficient to take the case to the jury upon the question of liability of the defendant. The main controversy had relation to the situation of the fifth story of the building, and in respect to the means of egress from it. There was only one stairway leading from it, while from the fourth, third, and second floors there were two descending stairways from each. There was, however, a door leading from the fifth floor on to the roof of an adjacent building, and there was a scuttle to which there was no stairs or ladder. The place where the plaintiff’s intestate was at the time the alarm of fire was given, does not necessarily appear by any evidence, but in view of the fact that he was occupied, more or less, on all the floors, there was an opportunity to infer that he

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may have been on the fifth floor at that time, although he was last seen by witnesses on the first and second floors, from ten to twenty minutes before the fire. Most of the employees escaped, and several on the fifth floor did so, through the door leading to the roof before-mentioned. The fire spread rapidly through the building and soon destroyed it. And about a dozen of the persons employed in it lost their lives by the fire. Upon the subject of the adequacy of the means of egress from the fifth floor provided by the stairs and door referred to, and the care of the defendant in that respect a witness on his part was asked: Was that in your judgment a proper and sufficient mode of access and egress from the building under any circumstances that might occur ?

To which the objection taken on the ground that it is for the jury and incompetent and improper,was overruled and exception taken. Without taking any answer the further question was asked. From the experience that you had and in exercising your judgment in relation to the preparing of this building, and this room for the work and manufacturing carried on there, did you regard the stairs and this door as a sufficient and proper mode of egress if any accident occurred % To which objection was, also, made, overruled, and exception taken.

And the witness answered: “I always looked at it in that light. And later on the same witness testified, that in his judgment, all the precautions that were needful were taken to make this factory and the business that was carried on there safe.

To which, the defendant’s counsel was permitted to take an exception. The witness was defendant’s superintendent while he operated the factory and had to some extent the preparation of the building for the business, preparatory to the work of manufacturing, vdiich was commenced in 1879. The question of his competency as witness to express the opinions given is not raised by the objection, and the exception goes only to the competency of the evidence. Curtis v. Gano, 26 N. Y., 427 ; Stevens v. Brennan, 79 id., 255.

But, as suggested by the objection, the question whether the means of egress were reasonably sufficient and all that due care required of the defendant to provide for his employees, was for the jury. That was one of the vital questions to be determined by them. And it is difficult to see that it came within the rule permitting the opinions of experts.

This building was -one hundred and sixty-one feet in length and forty-seven feet in width, and the evidence tends to show the room occupied the entire space on that floor between the outer walls. The location of the stairs

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and door, the distance from them to remote parts of the room, could be stated and a complete description of the room given, so as to convey to the jury an intelligent understanding of the situation. And when that can be done the rule requires that the testimony of witnesses shall be confined to a statement of the facts, and that the conclusions or opinions of witnesses be not permitted as evidence. Ferguson v. Hubbell, 97 N. Y., 507 ; reversing 26 Hun, 450 ; Hart v. H. R. Bridge Co., 84 N. Y., 57 , 60.

But when elements enter into the subject of inquiry, which cannot be described by witnesses so as to possess the jury with the information requisite to a complete understanding of it, the opinion of experts may be received. Such are the cases cited in support of the ruling. Whether a vessel was unseaworthy was held to be competent (Baird v. Daly, 68 N. Y., 547 ), because it involved the result of an examination which could not be fully communicated to a jury in any other manner. The same may be said of Bellinger v. N. Y. C. R. R. Co. ( 23 N. Y., 42 ), where it was held competent for an engineer familiar with the locality and with the structures to state whether an embankment and bridges were skillfully constructed with reference to the creek. Also, whether the fastenings of a schooner were sufficient for her safety, was held competent in Moore v. Westervelt ( 27 N. Y., 234 ), because the safety of the moorage of the vessel depended upon the sufficiency of the protecting power of the means employed to overcome the disturbing force of the wind and water, which were matters of observation and experience, and could not be embraced in a mere description of the causes and effects involved.

The evidence of an expert, whether a machine was constructed in a workmanlike manner, was held competent for a like reason in Curtis v. Gano ( 26 N. Y., 426 ). The rale was applied in Scattergood v. Wood ( 79 N. Y., 263 ).

And the admissibility of the opinion of an expert witness whether marble was properly stowed in a vessel (Price v. Powell, 3 N. Y., 322 ), can be supported on no other ground. See New England Glass Co. v. Lovell ( 7 Cush.. 319 ); White v. Ballou ( 8 Allen, 408 ).

In sustaining the reception of the opinion of witnesses as to the safety of a highway in a certain locality, the court remarked that “the elements entering into the question of reasonable safety are numerous and often difficult to describe.” Taylor v. Town of Monroe, 43 Conn., 36 , 45.

The application of the rule of evidence in cases of that character must be so qualified as to depend upon -the circumstances, and cannot be treated as one to be followed

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in all cases where the question of the safety of a highway arises.

The case last cited has for like reasons been given the support of the decision by a divided court, in Laughlin v. Street Railway ( 28 N. W. Rep., 873 ; 34 Alb. L. J., 134). See, on same subject, Lincoln v. Barre ( 5 Cush., 590 ).

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.

In the case at bar none of the elements requisite to the opinion of an expert seems to exist in reference to the subject of inquiry referred to. It involved no question of architecture as such, no combination of forces or strength of structural support requiring scientific or mechanical deduction. The building had its passageways provided. The difficulty in reaching and using them as a means of escape might be dependent somewhat upon the place where the fire should start, the knowledge of the danger, and the rapidity of its progress through the building. In this instance the stairway was very soon rendered unavailable as a means of escape, but there was no difficulty in going out through the door, of those who reached it. The character of the business carried on there was not important except as it affected the spread of the fire and the combustibility of the structure. The reasons which might cause failure to escape from the room may be various and are not the subject for opinion of witnesses, as the inferences may, as well as by them be determined by the jury from the situation furnished by evidence of the facts. The inquiry was not whether the defendant or his superintendent deemed the opportunities provided sufficient for the employees to safely get out of the building, but whether in the judgment of the jury due care had been used in furnishing the means to escape from it in cases of emergencies within reasonable apprehension.

The situation and condition of the premises and of the facilities for egress could be clearly described by evidence, and, we think, did not come within the rule permitting the opinion of witnesses. And, although a general objection may not have been effectual in support of ah exception, the ground of the objection made to the first question put to the witness pointed sufficiently to the trae reason for the inadmissibility of the evidence, and that ground must be deemed applicable to the objection to the question of like

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import following the unanswered inquiry first put to the witness. And the exception was well taken. It cannot be known whether this evidence affected the result. But, as it may have done so the error cannot be disregarded.

The judgment should be reversed and a new trial granted, costs to abide event.

Smith, P. J., and Barker, J., concur.