Winters v. Naughton

Ingraham, J. (concurring) :

I concur with Mr. Justice McLaughlin for a reversal of this judgment. As the first ground of reversal I think the question asked the witness Murphy, who was an expert called by the plain- ' tiff, that “ Under the circumstances that 1 have detailed to you, was the structure built there safe for a man to work ? ” was clearly incompetent. That was specifically objected to upon the ground that it. was not subject for expert testimony, calling on the witness ta-pass on the very facts that ought to be submitted to the jury. The objection was overruled and the plaintiff excepted, and the witness answered that it was not. I do not think this question was competent within the principle established by Finn v. Cassidy (165 N. Y. 584). The questions which were sustained in that case were questions by which an expert was asked to state the proper method of construction where it was alleged that in consequence of am improper method of construction the place in which the plaintiff: was put to work was rendered unsafe, and “ how in your opinion, ought that excavation to have been made so as to be safe for persons working in the bottom of the same % ” These were said to be subjects for expert testimony, but when you ask an expert witness whether in his opinion the place at which the employee was put to> work was a safe and proper place, the question is in effect whether or not the plaintiff is entitled to recover, and it has never been held that such a question was proper. As to how the excavation should have been protected is a question which an expert could answer* and the jury, having this knowledge with evidence-of the method that had been adopted, must determine whether or not the place at, which the plaintiff was directed to work was in fact a safe place. Tó allow the question which was asked in this cáse went further and asked the witness, not as to the methods adopted, but as to whether the place at which the plaintiff was put to work was in fact a safe' place for him to work. That question was necessarily a question of fact for the jury, to be determined by them upon the evidence, and not a question upon which expert witnesses could be interrogated.

I also agree with Mr. Justice McLaughlin that it is error to allow the plaintiff to show that the person who constructed the sheathing was discharged the day after the accident.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.