McDonald v. State — 37 N.Y. St. Rep. 248

Majority

p. 248

James C. McDonald, App’lt, v. The State, Resp’t. George Eastman, App’lt, v. The State, Resp’t.

(Court of Appeals, Second Division,

Filed April 21, 1891.)

Headnote

1. State—Evidence—Negligence.

On the trial of a case by the board of claims, grounded on the giving way of a canal bridge over which claimants were attempting to roll two mill stones, weighing 11,250 pounds, united by a short axletree. a witness for the state who had, previous to the accident, reduced the size of the stringers to the bridge, was asked: “Now, with what you did to these stringers of this bridge, did you leave it, in your judgment, safe for the ordinary uses of a highway bridge;" and was allowed to answer over plaintiff’s objection that it was incompetent and immaterial. Held, error; as it was in effect testifying that the employes of the state were not negligent.

2. Same.

A civil engineer and bridge builder was allowed to testify that stones of the size and weight mentioned united and moving as described were an excessive load for the bridge as originally constructed. Held, error, as the issue was whether the bridge, as reconstructed, was sufficient to bear the traffic which might reasonably be expected to pass over it, and the witness by his answer put himself in the place of the board of claims whose duty it was to determine from all of the evidence whether or not the elaimants by their negligence contributed to the accident.

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3. Board of claims—Notice of appeal from.

The statement in appellant’s notice of appeal that “ The board of claims erred in receiving evidence against the objection and exception of the claimant,” sufficiently pointed out the error on which they intended to rely, as the record did not show that any other evidence than this pointed out was admitted against their objection, and the counsel for the state was clearly apprised by this specification that these rulings would be challenged on appeal.

Appeal from final orders of the board of claims rejecting claims of the appellants.

In April, 1881, the state built an iron bridge over the Champlain canal in the village of Fort Ann; the planks of each panel were supported by eight pine stringers, three inches thick, and eleven and one-half inches wide, resting on needle beams. The ends or bearings of the stringers were but ten inches in width, and in September of that year they were, in some of the panels, reduced to five inches in width so as to diminish the grade of the bridge. It was testified in behalf of the state that when this was done the number of stringers in the panels, the grades of which were reduced, were doubled. The bridge remained in this condition until April 15, 1886, when the claimants attempted to roll over it two mill stones weighing 11,250 pounds, united by an axletree so short that they were but twenty-one inches apart. When part way over the bridge, one of its panels gave way and the claimants fell to the bottom of the canal, a distance of about twenty feet, and were severely injured.

They filed claims for their damages, alleging that the bridge was negligently constructed and maintained, and that they did not by their own negligence cause, in whole or in part, the accident. The board of claims, in deciding the case, refused to find that the employes of the state were negligent in the construction or care of the bridge, and found affirmatively that the claimants negligently caused the accident, and dismissed their claims. From this decision the claimants appeal, specifying in their notices, among other grounds: “ 1. The board of claims erred in receiving evidence against the objections and exceptions of the claimants.”

L. H. Northrup, for app’lts; Charles F. Tabor, attorney-general, for resp’t.

Oliver Thomas, who reduced the bearings of the stringers, was called as a witness in behalf of the state, and was asked: “ Q. Mow, with what you did to these stringers of this bridge, did you leave it in your judgment safe for the ordinary uses of a highway bridge ? Objected to on the ground that the witness is not shown competent to give an opinion with reference to the bridge, and it is immaterial whether in' his judgment he left it safe or not.” This objection was overruled, the claimants excepted, and the witness answered that he did. In effect, the witness was permitted to testify that the employes of the state were not negligent in making the change; that the bridge as changed was safe “ for the ordinary uses of a highway bridge,” and he was thereby permitted to determine whether tbe state or

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its employes were negligent, whicli was an issue to be decided by the board. Again, it does not follow that a bridge which was “ safe for the ordinary uses of a highway bridge,” was sufficient to sustain the traffic in that particular place.

A civil engineer and bridge builder was aslced by the counsel for the state whether, in his judgment, stones of the size and weight mentioned, united and moving as described, were an excessive load for the bridge as originally constructed, to which the claimants objected as immaterial, and as calling for an opinion regardless of facts, but their objection was overruled, and an exception taken. The witness answered: “ It was an excessive load; was too large a load for the bridge to carry as originally constructed.” The evidence does not show how the strength of the panels was affected by the change. The opinion of the witness as to whether the weight was excessive for the bridge before it was changed was not competent; the issue being whether the bridge, as reconstructed, was sufficient to bear the traffic which might reasonably be expected to pass over it.

Again, the witness by his answer was allowed to testify not only that the weight was excessive, but in effect that the stones were negligently united and moved over the bridge by the claimants, thus putting himself in the place of the board of claims, whose duty it was to determine from all of the evidence whether or not the claimants by their own negligence contributed to the accident. It was competent for experts in the art of bridge building, and having knowledge of the strength of timber used in such work, to testify to the supporting power of the bridge, or any one of its panels, or any one of its stringers, and had they not gone beyond this no error would have been committed. Hughes v. The County of Muscatine, 44 Iowa, 672 .

It is urged in behalf of the state that the first ground of error specified by the claimants in their notices of appeal is not sufficiently definite to enable them to raise these questions in this court. The statute provides that: “Every appeal shall be in writing stating briefly the grounds on which it is taken and subscribed by the party or his attorney.” Sec. 10, chap. 205, Law's 1883, as amended by § 10, chap. 507, Laws 1887. Also that: “ On the hearing before the court of appeals only such questions shall be considered by the court as are raised by the notice of appeal. And on all questions not raised by the notice of appeal it shall be presumed that sufficient evidence was given to sustain the award.” Sec. 11, chap. 205, Laws 1883. We think the specification that “ the board of claims erred in receiving evidence against the objection and exception of the claimant ” sufficiently pointed out the error on which they intended to rely. The record does not show that any other evidence than this pointed out was admitted against their objection, and the counsel for the state was clearly apprised by this specification that these rulings would be challenged on appeal.

The order in each case should be reversed and a new hearing directed before the board of claims, with costs to abide the event.

All concur, except Yann and Brown, JJ., absent.