Van Wycklen v. . City of Brooklyn , 118 N.Y. 424 ( 1890 )

The plaintiff brought this action to recover damages which he claimed to have sustained from the diverson by the defendant of the waters of a stream called Spring creek, and there was a verdict in his favor at the Circuit.

The judgment on such verdict was reversed by the General Term, and the order of reversal states that the facts were not before that court for review and its decision was upon the law only. The legal questions arising in this case are, therefore, properly before this court. Pharis v. Gere (112 N.Y. 408).

The plaintiff was the owner of a grist mill situated near the junction of "Spring creek" with Jamaica bay, and he derived the power to drive the machinery of his mill from the flow of the tide of the bay, and the flow of the waters of the creek.

The defendant, pursuant to a statute of the State, had acquired title to a strip of land upon the banks of the creek, about two miles above the plaintiff's mill, and upon such strip of ground had constructed one hundred driven wells, from which it pumped water for the supply of the city. The nearest well to the creek was distant therefrom about two hundred feet, and the others were located at varying distances up to about six or seven hundred feet therefrom.

It was the claim of the plaintiff that these wells drained the water from the creek and arrested the same in running to the mill, thus diverting the living stream and impairing and injuring his water power; and there appears to have been a concession at the trial; and the same is made in this court, that of, in sinking the wells on its own land, the city did no more than intercept the percolation of underground currents, and thereby prevented such water from running through the soil and reaching the stream, the action would not lie. And such is the law applicable to the case. (Chasemore v. Richards, 7 H.L. Cas. 349; Village of Delhi v. Youmans, 45 N.Y. 362, and cases cited.)

The question in issue, therefore, was, did the defendant by their wells and machinery draw the water out of the creek after it became an open running stream on the surface of the earth.

At the close of the plaintiff's case there was a motion by the defendant to dismiss the complaint "upon the ground that the evidence disclosed no liability on the part of the city," which motion was denied, the court holding that the evidence presented a question of fact for the consideration of the jury.

We do not understand the learned counsel for the city to claim that there was any error in the denial of this motion, and it was not made a ground of reversal at General Term.

It is sufficient for us to say, therefore, that we think the evidence was of a character to permit the conclusion drawn by the jury, and it would have been error for the court to have withdrawn the case from their consideration. The jury having determined the facts in favor of the plaintiff's contention, the judgment must stand unless there was error committed in the conduct of the trial.

The defendant called as a witness one William D. Andrews, who testified that his business was making and drilling wells and supplying water for cities and villages, and that he had constructed the wells in question. He described the manner of their construction, and stated that they drew water from a depth below the surface ranging from thirty-five to sixty feet, and that the depth of the wells varied for the purpose of "getting the benefit of the water in different water-bearing strata."

He was then asked the following question: "Was it possible for you to take in those pipes any water out of Spring creek?" This was objected to as "opinionative" and excluded, to which ruling of the court the defendant excepted.

The judgment was reversed by the General Term on the ground that this question should have been admitted, and the propriety of the ruling of the trial court in its exclusion is the main question presented on this appeal.

While we recognize fully the difficulty at times of deciding whether the case presented is one in which expert or opinion evidence is admissible, the majority of this court is of the opinion that the ruling of the trial judge was correct.

Within the general rule that witnesses who are skilled in science and art, and those who from experience and special study have peculiar knowledge upon the subject of inquiry which jurors have not, may testify not only to facts, but may also give their opinions as experts, the decisions of the courts have given a wide range to expert evidence.

No rule, however, can be made so precise as to include all cases, and each question as it arises must be determined by the application of general principles to the particular inquiry involved in the case before the court.

While it is no longer a valid objection to the expression of an opinion by a witness, that it is upon the precise question which the jury are to determine (Transportation Line v. Hope,95 U.S. 297; Bellinger v. N.Y.C.R.R. Co., 23 N.Y. 42; Cornish v. F.B.F. Ins. Co., 74 id. 296), evidence of that character is only allowed when, from the nature of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable. (Ferguson v. Hubbell,97 N.Y. 507; Schwander v. Birge, 46 Hun, 66; Greenl. on Ev. vol. 1, § 440, and note.)

Familiar examples of the admission of evidence of this character, are cases involving questions of medical practice and skill, and cases involving genuineness of handwriting. Within the same principle the question whether a vessel was unseaworthy was held admissible, because it involved the result of an examination which could not be fully communicated to a jury. (Baird v.Daly, 68 N.Y. 547.)

It was also held competent to ask a pilot "whether it would be safe for a tug boat on Chesapeake bay or any other wide water to tug three boats abreast with a high wind" (Transportation Line v. Hope, 95 U.S. 297); to ask of an engineer familiar with the locality and structure whether an embankment and bridges were skillfully constructed with reference to the creek (Bellinger v. N.Y.C.R.R. Co., 23 N.Y. 42); and evidence of like character has been admitted on the question of negligence in mooring a vessel (Moore v. Westervelt, 9 Bosw. 558); on the necessity of jettison (Price v. Hartshorn, 44 N.Y. 94), and on questions involving nautical skill (Walsh v. Marine Ins. Co.,32 N.Y. 427.) Opinions were held admissible in the cases cited, for the reason that the controlling issue in the case involved questions of skill and experience which the witness's practical knowledge enabled him to speak upon, and because the facts which impressed the mind of the witness could not be placed before the jury, and no better evidence was available.

The rule is well stated by Justice BRADLEY, in Schwander v.Birge (supra), as follows: "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 descriptivefacts, and, therefore, cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understunding of it."

To the same effect it was said by Judge EARL, in Ferguson v.Hubbell (supra): "Opinions are allowed when the facts cannot be adequately placed before the jury so as to impress their minds, as they impress the mind of a competent skilled observer. * * * When the facts can be placed before a jury, and they are of such a nature that juries generally are just as competent to form opinions in reference to them, and draw inferences from them as witnesses, there is no occasion to resort to expert or opinion evidence."

The question which the jury in this case was to decide was not one of science, and the inquiry vital to the admissibility of the evidence offered was, could the facts bearing on the question of the disappearance of the waters of the creek be placed before the jury, and were they of such a nature that the jurors could comprehend them and intelligently draw inferences from them.

There was nothing in the case as developed by the plaintiff that made opinion evidence admissible.

To sustain his theory that the subsidence of the waters in the creek was caused by the pumping from the wells, he had given evidence that the stream was made up largely of surface drainage, and not from underground currents; that it had never prior to 1883 dried up; that immediately following the commencement of the pumping from the wells the creek dried up at a point nearest the wells, while the water further up the stream and in its tributaries continued to flow.

He further showed generally the character of the surrounding soil, and that as the pumping continued and exhausted the water near the wells, the water disappeared further up the stream until its flow was substantially destroyed. The evidence of Andrews, given prior to being asked the question under consideration, added no new facts to the case. The question put to him in substance called for his opinion upon the facts proven. In other words he was asked to draw inferences and form conclusions which belonged exclusively to the province of the jury.

Whether or not the disappearance of the creek was caused by the pumping at the wells or whether the waters of the creek could filter through the ground and reach the bottom of the wells, depended upon the operation of natural laws, and if the witness had an opinion upon that subject it must have had its foundation in facts, such as the sources of the stream, the character of the soil between the bed of the creek and the bottom of the wells, the velocity of the stream and its grade, the course of the current, etc. These and any other facts bearing upon the question in issue, if deemed competent to overcome the effects of plaintiff's testimony, and account for the disappearance of the stream, might have been shown, and it is not at all unlikely that had facts of the character referred to been proven tending to indicate other adequate causes for the disappearance of the creek, that questions would have been developed upon which the opinion of an expert witness might have been admissible. But without such proof it is not apparent from the record that the case presented any question calling for the opinion of an expert, and unless such a case was presented on the evidence the question was properly excluded. (Gutterman v. L.N.Y. . P. SteamshipCo., 83 N.Y. 358; People v. Barber 115 N.Y. 475-491.)

The form of the question in this connection must be observed. It was not an inquiry into the causes of the disappearance of the stream, and called for no fact bearing upon the question which the jury could have considered. No opinion even upon the cause of the disappearance of the water was asked, but simply whether it was possible for the pumps to draw the water from the creek. This admitted of a simple negative answer, which could have thrown no light on the case, and afforded no assistance to the jury in their deliberations, and might have had no foundation except deductions and inferences from the evidence already in the case.

The purpose of expert evidence is to aid the jury in their deliberation on the case and in their review of the evidence, and to be competent for that purpose it must, where the questions involved are not ones of science or art, be based upon evidence in the case and confined in cases of this character to the causes of the injury complained of.

In Moyer v. New York Central Hudson River RailroadCompany (98 N.Y. 645), the question held to be competent was "are there any adequate causes in your opinion for this," referring to the injury complained of. The court said, "the witness, an expert, might very well be asked, in the presence of a given effect, of what causes it either was or might be the resultant. * * * It assumed an hypothesis, the truth or falsity of which was left open to the jury, and then asked not what caused the injury, but what were all the adequate causes which might have been its origin, leaving to the jury to determine among them."

Here the inquiry was of a very different character. It left nothing to the jury and it indicated no cause for the injury.

Assuming a negative answer to the question, to obtain which was its object, the defendant proposed to say to the jury: It is impossible for our pipes to draw the water out of the creek, notwithstanding all that plaintiff has proven. But as this was a mere naked opinion upon the precise question which the jury were to decide, it clearly was inadmissible.

None of the cases cited by the learned General Term are in point. Commonwealth v. Choate (105 Mass. 456), was an indictment for arson, and the case goes no further than to hold admissible the opinion of competent witnesses that two pieces of wood, which it was claimed connected the prisoner with the crime, were parts of the same stick. Obviously this evidence falls within the rule stated in Schwander v. Birge, where the means of knowledge of the witness existed in reasons rather than descriptive facts, and the case is analogous to those cited in this opinion relating to questions of skill and special and peculiar knowledge.

Buffum v. Harris (5 R.I. 243), was a case somewhat like the one under consideration, but there the experts stated facts upon which they based their conclusion, and the court held the opinions admissible in connection with those facts. The same may be said of the case of Detweiler v. Groff (10 Penn. St. 377), and Phillips v. Terry (3 Abb. Ct. App. Dec. 607), cited by the respondent. Moyer v. New York Central Hudson RiverRailroad, had already been referred to. Between that case and the one under consideration, there is no similarity.

If the question had called for a statement by the witness of any adequate cause within his knowledge for the disappearance of the creek, it would have been within the principle of the MoyerCase and been admissible. The jury would then have had before it an hypothesis or theory, the truth or falsity of which they could have considered in connection with the open visible facts of the case, and which would have been left open for their determination.

We are of the opinion that this case was not one in which it was impossible to place the facts bearing upon the matter in controversy before the jury, and that to have admitted the opinion of the witness called for by the question asked, would have extended the rule as to expert testimony beyond that of any reported case within this state.

Whatever may be the rule elsewhere, the decisions of this state are adverse to the rule contended for by the respondent.

Our conclusion is that the ruling of the trial court was right.

There was no error in the ruling upon the other question asked of the same witness and excluded upon the plaintiff's objection.

It was of no importance what the system of pumping operated by the defendant was designed to reach, or what it depended upon. The question was, did it reach the waters of the creek and divert them from the living stream, and upon that question the evidence excluded had no bearing whatever.

The order of the General Term should be reversed and the judgment entered upon the verdict affirmed, with costs.