Davis v. New York, Lake Erie & Western Railroad ( 1893 )

BARNARD, P. J.

The death of the plaintiff’s intestate was occasioned by the same accident which occasioned the injury to George Gerbig, whose case was heard upon appeal in the court at the last December (1892) term. 22 N. Y. Supp. 21. The questions put to the witness Ferguson, a civil engineer, calling for his opinion as to the safety of the crib which gave way and caused the accident, are similar in principle to the questions considered in the Gerbig Case. It was therein held that the questions admitted assumed the functions of the jury upon questions of fact. The judgment and order refusing a new trial should be reversed, and a new trial granted, costs to abide event, on the opinion in the Gerbig Case.

DYKMAN, J., concurs.