Swartout v. New York Central & Hudson River Railroad , 14 N.Y. Sup. Ct. 571 ( 1876 )

Mullin, P. J.:

A new trial must be granted in this action by reason of the admission of the evidence of one of the defendant’s witnesses, in answer to the question whether the cattle-guard, over which plaintiff’s horse passed, was a proper one.

The court held that if the question was one of skill merely, the answer of the witness was properly admitted, but it was not. When the manner of its construction was shown the jury was competent to speak of its fitness for use, as was any person engaged in its construction, or in the construction of such guards, however numerous. It does not require experience in the construction of cattle-guards to know that if the timbers composing the superstructure are so near each other that the feet of horses or cows will not pass between them the guard furnishes no obstruction to cattle desiring to pass over. If the opening between the timbers is only two inches and the animal’s foot, is five inches in length it can pass almost as easily as if the timbers were in actual contact. No amount of opinions could justify the finding that a cattle-guard so constructed was fit for the use for which it was constructed, however skillful and competent the witnesses might be.

In calling the space between the timbers two inches I do not intend to speak with accuracy of the width of the spaces in the cattle-guard in question, or the size of the animal’s feet; my understanding of the evidence is that the openings were less in size than were the horses’ feet.

It is sometimes quite difficult to determine when a question is one proper to be put to experts only, and is therefore one of skill, or whether it calls for facts merely and not opinions. The question put to the witness in this case was allowed as one calling for the opinion of the witness, whereas the subject was one, as to which opinion was not competent.

Whether a bridge is properly constructed — that is, whether the principles applied in its construction are such as to secure permanence and safety, are questions of skill, and can only be put to persons acquainted with business of bridge building, or, in certain cases, to men of science, theoretically acquainted with the strength of material and with the rules which should be adopted in combining together the various parts of the structure, so as to secure permanence and safety. But whether an inch board would be suitable for flooring, or whether the timbers laid as flooring might be laid five or six inches apart, every person of sound mind and who has passed the age of boy or girlhood is capable of testifying in regard to.

By reason of the improper admission of the evidence, to which reference is made above, the judgment must be reversed and new trial granted, costs to abide event.