27 N.Y.S. 594 75 Hun. 605

(75 Hun, 605.)


(Supreme Court, General Term, Second Department.

February 12, 1894.)

Evidence—Mattes oe Opinion on, Fact—Character oe Lumber.

Whether a certain kind of wood is strong or weak is a matter of fact, though it requires knowledge of, and experience with, such wood, and the exercise of judgment on such experience, to become aware of the fact.

Appeal from circuit court, Rockland county.

*595Action by George Gerbig against the New York, Lake Erie & Western Railroad Company to recover damages for injuries received by plaintiff while in defendant’s employ. From a judgment entered on a verdict in favor of plaintiff for $5,750, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

For decision on former appeal see 22 N. Y. Supp. 21.

Argued before DYKMAN, PRATT, and CULLEN, JJ.

Lewis E. Carr, for appellant.

Arthur S. Tompkins, for respondent.


This is an appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury. The plaintiff, an employe of defendant, was injured by the collapse of a coal bin, where he had been put to work shoveling coal. The bin was full, while the adjoining bin was empty. There was evidence tending to show that before the accident the side towards the empty bin had partially given way or been displaced by the pressure of the coal, and that the defendant had notice of that fact. Negligence was claimed in three respects: the character of the lumber used, the insufficiency of the anchoring strips, and the failure to strengthen the bin after it had shown signs of weakness. The evidence was ample to warrant the verdict, and the judgment should stand if no legal errors were permitted on the trial. The first error claimed is the admission of testimony as to the character of the wood used for the partition, to the testimony that the anchors, to sustain any horizontal pressure, would have to extend into the coal, beyond the natural line or rest. No objection is made to the competency of the witnesses giving this evidence. The first was a carpenter; the second, a civil engineer and builder. But it is claimed that such testimony related to matters of opinion, and was, therefore, incompetent, under Van Wycklen v. City of Brooklyn, 118 N. Y. 429, 24 N. E. 179, and Davis v. Railroad Co., 69 Hun, 174, 177, 23 N. Y. Supp. 358. The testimony of the witnesses was, in one sense, as to matters of opinion, but it was also as to matters of fact. Whether a certain wood is strong or weak, brittle or tough, is a matter of fact, and is a matter of opinion only in the sense that it requires knowledge of and experience with lumber, and the exercise of judgment on such experience, to become aware of the fact. The same is true of the statement of the holding power of the anchors. It was a mechanical or physical fact But, whether considered matters of fact or matters of opinion, the testimony was admissible. It is competent for experts to testify to opinions concerning matters justly the subject of expert knowledge, or to matters of fact which are not matters of common knowledge. The testimony admitted comes exactly within the rule approved in the Van Wycklen Case, “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.” Surely the majority of people do n’ot know the respective merits and *596demerits of hemlock lumber, and fewer know the law of mechanics governing the holding of an anchor any more than the thrust of an arm. Nor does the ruling of the trial court conflict with our previous decisions in the cases arising from this accident. Indeed, we are inclined to the belief that in those decisions the principle of excluding testimony as to opinion was pushed too far. The evidence offered by the defendant that the Hillside Goal & Iron Company had built the partition and stored the coal in the adjoining bin was properly excluded. The answer (paragraph 3) admitted defendant’s construction of the bin. It alleged that defendant furnished suitable material 'in character and in quantity, and intrusted the work to competent persons, and that the negligence, if any, was that of plaintiff’s fellow servants in performing the work. This is a plain statement that the defendant did construct the bin; otherwise, how could the persons who constructed it have been plaintiff’s fellow servants? The judgment and order denying motion for a new trial should be affirmed, with costs. All concur.

Gerbig v. New York, Lake Erie & Western Railroad
27 N.Y.S. 594 75 Hun. 605

Case Details

Gerbig v. New York, Lake Erie & Western Railroad
Decision Date
Feb 12, 1894

27 N.Y.S. 594

75 Hun. 605

New York



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